HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 28
Case :- FIRST APPEAL FROM ORDER No. - 1962 of 2006
Appellant :- United India Insurance Co. Ltd. Thru' Divisional Manager
Respondent :- Ramesh & Others
Counsel for Appellant :- Saral Srivastava
Counsel for Respondent :- Neeraj Srivastava,Virendra Singh
And
Case :- FIRST APPEAL FROM ORDER No. - 1963 of 2006
Appellant :- United India Insurance Co. Ltd. Thru' Divisional Manager
Respondent :- Deewan Singh & Others
Counsel for Appellant :- Saral Srivastava
And
Case :- FIRST APPEAL FROM ORDER No. - 1964 of 2006
Appellant :- United India Insurance Co. Ltd. Thru' Divisional Manager
Respondent :- Vijay Pal & Others
Counsel for Appellant :- Saral Srivastava
And
Case :- FIRST APPEAL FROM ORDER No. - 1965 of 2006
Appellant :- United India Insurance Co. Ltd. Thru' Divisional Manager
Respondent :- Digambar & Others
Counsel for Appellant :- Saral Srivastava
Counsel for Respondent :- K.P.Pandey,Neeraj Srivastava,Virendra Singh
And
Case :- FIRST APPEAL FROM ORDER No. - 1966 of 2006
Appellant :- United India Insurance Co. Ltd. Thru' Divisional Manager
Respondent :- Digambar & Others
Counsel for Appellant :- Saral Srivastava
Counsel for Respondent :- K.P.Pandey,Neeraj Srivastava,V.Singh
Hon'ble Manoj Misra, J.
Heard Sri Saral Srivastava for the appellant and Sri Neeraj Srivastava for the claimant - respondents in all the above appeals. No one appeared on behalf of the owner of the vehicle involved in the accident.
These five appeals have been filed by the Insurer of tractor no. UP 85 L 0438 challenging awards dated 02.05.2006 passed separately by the Motor Accident Claim Tribunal/ Additional District Judge, Court No.4, Mathura in M.A.C.P. Nos.161, 163, 165, 209 and 212 of 2004 by which compensation of Rs.1,52,000/- with 6 % interest from the date of claim has been separately awarded to the claimants of each of the claim petitions. As the aforesaid claim petitions arose out of a common accident dated 16.5.2004, involving a common offending vehicle i.e. Tractor no. UP 85 L 0438, in which as many as five children traveling in a rickshaw died on account of the injuries which they received in the accident and all these appeals raise common questions of law and fact, for the sake of convenience and with the consent of learned counsel for the parties are being decided together by a common judgment.
First Appeal From Order No. 1962 of 2006 arises out of claim petition no.161 of 2004, which was filed by the parents of the deceased girl child Vimlesh, aged six years. First Appeal From Order No. 1963 of 2006 arises out of claim petition no.212 of 2004, which was filed by the parents of deceased girl child Puja, aged 10 years. First Appeal From Order No. 1964 of 2006 arises out of claim petition no.209 of 2004, which was filed by the parents of deceased girl child Arti, aged 8 years. First Appeal From Order No. 1965 of 2006 arises out of claim petition no.163 of 2004, which was filed by the parents of deceased girl child Geeta, aged 12 years. And First Appeal From Order No. 1966 of 2006 arises out of claim petition no.165 of 2004, which was filed by the parents of deceased male child Lokesh, aged 6 years.
In all these claim petitions, the Tribunal, on the basis of the statement of rickshaw puller as well as documentary evidence like the first information report, charge sheet, etc., came to the conclusion that the accident occurred on account of rash and negligent driving of the Tractor No. UP 85 L 0438, which hit the rickshaw that was carrying several children, thereby causing serious injuries to as many as five minor children, which resulted in their death. The Tribunal awarded compensation by taking the notional annual income of the deceased minor at Rs.15,000/- and after deducting one third from the annual income, a multiplicand of 10,000/- was obtained to which a multiplier of 15 was applied and, thereafter, Rs. 2000/- was added towards funeral expenses so as to arrive at a compensation of Rs.1,52,000/-. The Tribunal found that the offending vehicle (tractor) was insured with the appellant on the date of the accident and as a valid driving licence of the driver of the tractor, involved in the accident, was produced before the Tribunal, liability was fastened on the Insurance Company i.e. the appellant.
The learned counsel for the appellant has assailed the impugned awards on ground that from the evidence on record it was established that a trolley filled with mud was attached to the tractor and as such the same was being used for commercial purpose. It was submitted that on attachment of trolley, the tractor became a "goods carriage vehicle", which was otherwise insured only for agricultural purposes, therefore, there was a breach of the terms and conditions of the contract of insurance and as such no liability ought to have been fastened on the insurance company and if any direction were to be issued to the insurance company to deposit the compensation amount then it ought to have been given a right to recover from the owner of the tractor.
In support of the aforesaid submissions, Sri Saral Srivastava, learned counsel for the appellants placed reliance on a decision of the Apex Court in the case of National Insurance Company Ltd. Vs. V. Chinnamma and others reported in (2004) 8 SCC 697 so as to contend that when a tractor is attached to a trolley then it falls within the definition of goods carriage as defined in Section 2 (14) of the Motor Vehicles Act and, therefore, a package insurance policy of a tractor, which has been for agriculture purposes, would not cover a goods carriage inasmuch as a tractor is separately defined in Section 2(44) of the Motor Vehicles Act. It was submitted that since the very nature of the vehicle changed on account of the attachment of trolley, the insurance company could not have been made liable. Sri Saral Srivastava placing reliance on the statement of rickshaw puller submitted that the rickshaw puller in his testimony disclosed that mud was being carried in the trolley, which amounted to an admission that the tractor trolley was being used for commercial purposes.
In response to the aforesaid submissions, the learned counsel for the claimant-respondents submitted that the insurance policy did not provide that attachment of a trolley to the tractor, ipso facto, would be a breach of the terms and conditions of the policy. It was submitted that the Tractor was comprehensively insured for agriculture purpose and even a trolley is often used for agriculture purpose and mere carrying of mud would not suggest that it was being used for commercial purpose. Further, since no evidence was led from the side of the insurance company to establish that the tractor was being used in breach of any of the conditions of the contract of insurance, the insurance company cannot avoid its liability under the insurance contract and, in any case, the claimant-respondents cannot be deprived of the benefit of insurance. It has been submitted that if Court comes to the conclusion that there was a breach of the terms and conditions of the insurance then the insurance company may be given the benefit of recovery from the owner after making payment to the claimant respondents.
Learned counsel for the claimant-respondents further submitted that in the testimony of rickshaw puller, it has not specifically come that the tractor trolley was being used for commercial purpose. It has been submitted that the burden was on the insurance company to establish that there was breach of the terms and conditions of the insurance contract. But, as no evidence to that effect was led by the insurance company, the insurance company cannot be absolved from its liability, particularly when it was proved that the vehicle was duly insured and was being driven by a driver who held a valid driving license.
On a perusal of record, this Court finds that the Tribunal has repelled the contention of the insurance company on ground that from the evidence on record it was not proved that the tractor was being used for commercial purpose. The Tribunal while returning the said finding placed heavy reliance on the fact that no evidence was led on the part of the insurance company to prove that there had been a breach of the conditions/terms of the insurance contract.
No doubt, the burden is on the insurance company to establish that there has been a breach of the conditions of the contract of insurance but there may be a case where from the own evidence of the claimant or the owner of the vehicle such a breach may be inferred or proved even though no evidence may have been led by the insurance company.
In the instance case, the insurance policy, by which the offending vehicle was covered, disclosed that it was a farmers' package insurance. There is nothing in the insurance contract or any other document, to which the attention of the Court might have been drawn, to show that the insurance would become void by mere attachment of a trolley to the tractor. Limitations /restrictions imposed by the policy with regards to the use of the vehicle, as provided in the insurance contract, are similar to those as provided in sub section (2) of section 149 of the Motor Vehicles Act.
Under sub section (2) of section 149 of the said Act, one of the ground on which the insurer can defend an action is that the vehicle has been used for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle. Relying on the provisions of sub section (1) of section 66 of the Motor Vehicles Act, the learned counsel for the appellant submitted that under sub section (1) of Section 66 of the Act, no owner of a motor vehicle is to use or permit the use of the vehicle as a transport vehicle in any public place whether or not such a vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. It was submitted that since by attachment of trolley, the tractor became a goods carrying vehicle, a permit was required and as there was no permit for the said purpose, there was a clear breach of the contract of insurance. It was thus submitted that as there was a breach of the conditions of the contract, the insurance company was not liable to make payment of the compensation amount.
In response to the aforesaid submission, the learned counsel for the respondents invited the attention of the Court to the provisions of sub-section (3) of Section 66 of the Motor Vehicles Act. Clause (i) of sub-section (3) of Section 66 of the Motor Vehicles Act provides that the provisions of sub-section (1) would not apply to any goods vehicle the gross vehicle weight of which does not exceed 3000 Kilograms. Relying on the aforesaid clause, the learned counsel for the respondents submitted that since it has not come on record that the gross vehicle weight of the tractor including the trolley exceeded 3000 kilograms, it cannot be said that the provisions of sub-section (1) of Section 66 were attracted and, therefore, a permit was required. It has thus been submitted that since no evidence has been led on the part of the insurance company to show that a permit was required under the provisions of sub section (1) of Section 66 of the Motor Vehicles Act read with clause (i) of sub-section (3) of Section 66, the contention that there had been a violation of Section 66 of the Motor Vehicles Act and, therefore, of the insurance contract, cannot be accepted.
Having considered the rival submissions, this Court finds that in the case of National Insurance Corporation of India Ltd. Vs. V. Chinnamma and others (supra), the Apex Court, in paragraph 16 of its judgment, observed: "that a tractor fitted with the trolley may or may not answer the definition of a goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agriculture unless registered otherwise." Further, in the case of Fahim Ahmed versus United India Insurance Co. Ltd. LAWS (SC)-2014-3-42:TLPRE-2014-0-201, the Apex Court observed that if at the time of the accident, a trolley was attached with the tractor, and merely because it was carrying sand would not mean that the tractor was being used for commercial purpose and, consequently, there was a breach of the condition of policy on the part of the insured. A reading of the said decision would go to show that there should be evidence brought on record to show that the tractor was being used for commercial purpose(s) or purpose(s) other than agricultural pupose(s), i.e., for hire or reward, as contemplated under Section 149 (2)(a)(i)(a) of the said Act. Taking note of the observations of the Apex Court, what comes out is that it is not necessary that if a trolley is attached to a tractor the vehicle ipso facto becomes a goods carriage vehicle or a transport vehicle which may require a permit. Further, by mere attachment of trolley its usage would not get altered from agricultural to commercial.
Whether a vehicle has been used for agricultural pupose or commercial purpose is a question of fact, which has to be determined on the basis of evidence led before the Court concerned. In the instant case, no evidence has been led to show that the tractor trolley was being used for commercial purpose(s) when the accident occurred. Therefore, the insurance company cannot avoid its liability on mere ground that a trolley was attached to the tractor involved in the accident. It would be useful to observe that it is not the case of either party that the trolley attached to the tractor had hit the rickshaw in which the children were travelling. It has specifically come on record that the tractor had hit the rickshaw. In such circumstances, this Court is of the view that the insurance company cannot avoid its liability by claiming that on account of attachment of trolley to the Tractor, there was a breach of the condition of the contract of insurance therefore no liability could be fastened on it.
At this stage, the learned counsel for the appellant invited the attention of the Court to the statement of the rickshaw puller recorded in MACP No.161 of 2004 out of which FAFO No.1962 of 2006 arises. The rickshaw puller namely, Digamber, was examined by the claimants as P.W.2. In his testimony he stated that the Tractor was being driven fast and rash because the driver in order to complete his commercial errand of transporting mud was required to drive it in that manner. Relying on the said statement of the rickshaw puller, the learned counsel for the appellant submitted that this is an admission from the claimants witness that the vehicle was being used for commercial purpose, accordingly, the defence plea of the appellant could not have been brushed aside merely because the appellant led no evidence to prove that the vehicle was being used for commercial purpose.
The statement of the witness that vehicle was being driven fast because the owner/ driver are required to quickly complete a commercial errand is not admission of a fact that the vehicle was being used for commercial purpose, but is an assumption of a state of affairs. A statement made on assumption cannot be treated as an admission of fact. A statement of fact which is based on own knowledge and not on assumption can alone be relied as a piece of evidence. Therefore, if the rickshaw puller gave a statement that the tractor was being driven fast and in a rash manner because normally the tractor-trolleys are required to complete the commercial errand quickly, is a statement not based on own knowledge about the use of tractor in question for commercial purpose, but on assumption that they are used for such purposes, therefore, are driven fast. Accordingly, not much reliance can be placed on the said statement so as to conclude that the offending vehicle was being used for commercial purposes.
In view of the discussion made above, I do not find any good reason to disturb the finding of the Tribunal that there was no breach of the terms and conditions of the contract of insurance so as to absolve the appellant of its liability under the contract of insurance.
All the appeals are, accordingly, dismissed. There is no order as to costs. The interim orders, if any, stand discharged. Rs.25,000/- deposited by the appellant, if not already remitted to the Tribunal, would be remitted forthwith, in each of the appeals, to be adjusted against the awarded amounts.
Order Date :- 23.5.2014 Sunil Kr. Tiwari