Allowed

National Insurance Company Ltd., v. D.Gokari

Telangana HC11 Nov 2014MACMA/3231/2009

Case brief

AI extract

What is this about?

This Division Bench answered a reference framed by the Single Judge regarding whether a tractor trailer requires independent insurance coverage. The Court interpreted the definition of 'motor vehicle' and concluded that a trailer attached to a tractor is part of the motor vehicle, not a separate entity requiring independent insurance.

What did the court decide?

Reference answered in favour of the claimants; appellants held that trailer does not need independent insurance coverage when attached to a tractor.

National Insurance Company Ltd., Vs D.Gokari — Telangana HC (2014) — LawSathi Research

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM M.A.C.M.A.Nos.170, 184 & 3231 of 2009

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% Dated 11.11.2014

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# The National Insurance Co. Ltd & others

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….Appellants

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$ Golla Dasari Nagaiah and others.

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….Respondents

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! Counsel for the appellants : Sri A.Veeraswamy & Sri N.Jayasurya ^ Counsel for respondents : Sri K.Rathangapani Reddy & Sri N.Aswartha Narayana

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< GIST:

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> HEAD NOTE:

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? Cases referred:

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1. (2005) 7 Supreme Court Cases 364

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2. 2008(2) ALD 273 (DB)

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3. (2007) 7 Supreme Court Cases 56

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND

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THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM M.A.C.M.A.Nos.170, 184 & 3231 of 2009

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COMMON JUDGMENT: (Per LNR,J)

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These appeals are filed under Section 173 of the Motor Vehicles Act by the Insurance Companies, feeling aggrieved by the awards passed by the concerned Motor Accidents Claims Tribunals. The common question involved in these appeals is as

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to whether Trailer of a Tractor requires separate and independent insurance coverage. When the appeals were listed for hearing, before the learned Single Judge, the matters were referred to Division Bench by framing the following question:

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“Whether a trailer requires independent policy apart from the tractor to which it is attached.”

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M.A.C.M.A.No.184 of 2009 arises out of O.P.No.209 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kadapa at Proddatur. The 1^st respondent therein filed the O.P. claiming compensation stating that he suffered injuries on 02.03.2002 when he was engaged as a Cooly to work on Tractor and Trailer bearing Nos.AP-04-E1868 and AP-04-E-1869.

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M.A.C.M.A.No.170 of 2009 arises out of M.V.O.P.No.201 of 2003 on the file of the same Tribunal, with the same claim. M.A.C.M.A.No.3239 of 2009 arises out of M.V.O.P.No.420 of 2003 on the file of the Motor Accidents Claims Tribunal-cumPrincipal District Judge, Kurnool. Respondents 1 and 2 therein are the parents of one D.Babaiah, who died on 21.06.2003, while doing Cooly work of loading Kadapa slabs in Trailer bearing No.AP-21/U-8366 and Tractor bearing No.AP-21/U-8365. The appellants herein have also been impleaded in their capacity as insurers of the vehicles. The respective Tribunals passed awards, granting compensation.

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One of the grounds raised by the appellants is that they are not liable to pay compensation, since the death or injury had occurred, while the concerned persons were working on the Trailers and that no insurance policies were taken out for the Trailers.

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Learned counsel for the appellants advanced extensive arguments. They submit that the “Trailer” as defined under Subsection (46) of Section 2 of the Act, is by itself, a “motor vehicle” as defined under Sub-section (28) of Section 2 of the Act. They submit that the requirement under Section 146 of the Act to take coverage for a motor vehicle applies to Trailer also and since the Trailers in the instant case were not covered by insurance policies, the appellants are not liable to pay compensation. They

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placed reliance upon the judgment of the Supreme Court in Natwar Parikh vs. Co. Ltd. vs. State of Karnataka and others^[1] .

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Learned counsel for the respondents, on the other hand, submit that the occasion to take insurance policy arises only when the vehicle has self propulsion and a Trailer which can move only on being attached to Tractor does not need any insurance at all. They contend that the test to be applied in the matters of this nature is the propensity of a structure to become the source of an accident, while in motion and viewed in that context, the contention advanced by the appellants cannot be sustained in law. They submit that this very question was dealt with by a Division Bench of this Court in United India Insurance

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Co. Ltd., Kadapa vs. Koduru Bhagyamma and others^[2] and that the reference deserves to be answered in favour of the claimants and against the insurance company.

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Taking out of insurance policy, covering the risks arising out of accidents involving motor vehicles was introduced as a social security measure by including the corresponding provisions in the Motor Vehicles Act, 1939. The mechanism for adjudication of the claims arising out of accidents involving motor vehicles is also provided in detail, in that very enactment. In the Motor Vehicles Act, 1988, substantial improvements are made in this behalf. Section 146 of the Act, which deals with the necessity for insurance of the motor vehicles, reads as under: 146. Necessity for insurance against third party risk:-

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(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is no force in relation to the use of the vehicle by that person or that is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter. [Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991)] Explanation:- A persona driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by

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this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.

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(2) Sub-Section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise.

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(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely:-

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(a) the Central Government or a State Government, if the vehicle is used for Government purposes unconnected with any commercial enterprises;

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(b) any local authority;

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(c) any State Transport Undertaking;

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Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties.

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Since what is required to be insured is a motor vehicle, it becomes necessary to take note of the definition of “motor vehicle” as defined under Section 2(28) of the Act.

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(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centrimeters.

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It is a matter of common knowledge that a Trailer particularly of a Tractor, is a metallic container or structure fitted with mostly two wheels with rim, tube and tyre. If a container or a device for transporting goods just fitted with rim, tube and tyre is to be treated as a vehicle, even a bullock cart fitted with such wheels deserves to be treated as such. That can never be said to be the intention of the Parliament. A Trailer becomes mobile and source of accident, only when it is attached to a Tractor. In Koduru Bhagyamma’s case (2 supra), a Division Bench of this Court held as under:

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6. So by the said definition, the motor vehicles are those vehicles which are mechanically propelled and adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source. Under sub-section (44) of Section 2 of the Act tractor is defined as a motor vehicle which is not itself constructed to carry any load. Tractor is a special type of motor vehicle which cannot by itself carry any load, but all the same it is a motor vehicle. Sub-section (46) of Section 2 of the Act defines trailer as a vehicle which is intended to be drawn by a motor vehicle. So fi sub-sections (28), (44) and (46) of Section 2 of the Act read together, it becomes clear that a trailer is not a motor vehicle, but becomes part of a motor vehicle when it is drawn by a motor vehicle because sub-section (28) of Section 2 of the Act makes a special reference to a trailer and trailer cannot be moved on roads except by a propulsion transmitted thereto from a motor vehicle. Therefore, in our view, a trailer attached to a motor vehicle is apart of the motor vehicle itself.

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Their lordships did not treat the Trailer as a separate entity from the Tractor and in a way, maintained their unity and integrity. We are in respectful agreement with that.

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Learned counsel for the appellants made an effort to distinguish that judgment by placing reliance upon the judgment of the Supreme Court in Oriential Insurance Co. Ltd. vs. Brij Mohan and others^[3] . It is important to note that the question as to whether a Trailer is required to be insured independently did not fall for consideration in that case at all. The following paragraph makes that aspect clear:

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“3. First respondent Brij Mohan filed the claim petition. he was a labourer. On or about 11-3-1998 he was travelling on a trolley attached to a tractor. There exists a dispute as to whether both the tractor and the trolley were insured or not. It may not be necessary to determine the said question.”

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When the question did not fall for consideration at all, it is difficult to infer any ratio from it. Further, though it was held that the award of compensation to claimant therein was not proper, the award was ultimately sustained and the payment of compensation was not interfered with. The insurer was given the liberty to recover the amount.

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In Natwar Parikh’s case (1 supra), the question arose

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under the Motor Vehicles Taxation Act, 1957. It does not need emphasis to mention that the parameters for imposing tax are substantially different form those, which apply to the requirement as to insurance. The motor vehicle taxation becomes leviable because of the plying of the object on the road; whether such a plying is on its own accord or through propulsion by another vehicle. The basis for levy is mostly, the use of the road. The observations made therein cannot be treated as relevant in the facts of this case.

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We therefore answer the reference against the appellants and in favour of the applicants. To be precise, we hold that the Trailer that is attached to a Tractor does not need independent insurance coverage.

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The miscellaneous petitions filed in these appeals shall also stand disposed of. There shall be no order as to costs.

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____________________ L.NARASIMHA REDDY, J

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CHALLA KODANDA RAM, J

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Date: 11.11.2014 Note: L.R.Copy to be marked. JSU

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM

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M.A.C.M.A.Nos.170, 184 & 3231 of 2009