Bombay High Court

The New India Assurance Co. Ltd. vs Vs. Kokilaben 1987 A.C.J. 411 ... on 12 December, 2012

Bench: M.N. Gilani

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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                             
                                 NAGPUR BENCH AT NAGPUR

                                           FIRST APPEAL No.146/2000.




                                                                              
                  The New India Assurance Co. Ltd., Chandrapur,
                  Tah. & Distt. Chandrapur through its Assistant Manager,
                  Regional Office, Sitabuldi, Nagpur.               ....... APPELLANT




                                                                             
                                    ...V E R S U S...

                1. Smt. Mirabai w/o Parshuram Chaudhari
                    aged about 30 years, R/o Ratnapur,




                                                          
                    Tah. Sindewahi, Distt. Chandrapur.
                                 
              2. Raju s/o Parshuram Chaudhari,
                  aged about 5 years, minor through guardian 
                  Mirabai Chaudhari, R/o Ratnapur,
                  Tah. Sindewahi, Distt. Chandrapur.
                                
              3. Shri Ramdas Hari Savaskade,
                  aged about 26 years, Occ: Driver,
                  R/o Ratnapur, Tah. Sindewahi, Distt. Chandrapur.
      


              4. Shri Duram Bakaram Khobragade,
   



                  deceased through Lrs

              (i) Smt. Panchfula wd/o Duram Khobragade

              (ii) Ravindra s/o Duram Khobragade





              (iii) Manoj s/o Duram Khobragade

              (iv) Dhanraj s/o Duram Khobragade





                    All residence of Nachan Bhatti,
                    Tah. Sindewahi, Distt. Chandrapur.                              ....... RESPONDENTS
     ------------------------------------------------------------------------------------------------------------
                         Mr. A.J. Pophaly, Advocate for Appellant.
                         Mr. M.B. Badiye, Advocate for Respondent Nos.1 & 2.
                         Mr. S.D. Malke, Advocate for Respondent No.4.
     ------------------------------------------------------------------------------------------------------------

                                    CORAM:  M.N. GILANI, J.

                                    DATE:      DECEMBER 12, 2012.





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     ORAL JUDGMENT

1. This appeal is directed against the judgment and award

dated 02.02.2000, passed by the Member, Motor Accident Claims

Tribunal, Chandrapur in Motor Accident Claim Petition No.133/1992.

2. On 07.03.1992, the tractor trolley owned by original

respondent no.2 (his LRs respondent no.(i) to (iv) herein) and driven by

respondent no.1 met with an accident while transporting the stones.

Parshuram, the deceased who was working as a labourer and travelling

in the tractor trolley, sustained injuries and succumbed to them. The

vehicle was insured with original respondent no.3 - appellant herein.

The deceased left behind him widow and the minor son. They are the

original petitioners and respondent nos.1 and 2 herein.

3. Respondent no.3 claimed that he was not negligent or rash

while driving the vehicle. Respondent No.4, stated that he had obtained

the policy to cover the liability arising in respect of injury or death of the

labourer. According to him, the deceased was travelling in the tractor

trolley as a labourer and therefore, the appellant - insurance company

should discharge the liability, if, any saddled upon him. The appellant

resisted the claim by pleading that the vehicle was being used for

commercial purpose, although it was registered for agricultural purpose.

It was averred that no extra premium was paid to cover the liability

arising out of an injury or death caused to the labourer travelling in the

fa146.2000.J.odt 3/11

vehicle. The policy only covers risk of the third party.

4. The Tribunal framed the following issues and recorded its

findings, which are reproduced below:

ISSUES FINDINGS

1. Do Petitioners prove that they are dependents

and legal heirs of deceased Parshuram Jago Choudhary? Yes

2. Do they prove that Parshuram died in an

accident of Tractor No.MXF-8495 with trolley No.MTG-6548, due to rash and negligent

driving? Yes

3. Do they prove that the vehicles were insured

with Respondent No.3?

     4.       Does Respondent No.3 proves that Parshuram
              was travelling by the trolley in violation of
      

              Motor Vehicle Rules and in breach of Insurance
              Policy?                                                                                           No
   



              If yes, whether Respondent No.3 is absolved
              from its liability?

     5.       Are Petitioners entitled to get compensation?                 Yes,





              If yes, how much and from whom?                         Amount of
                                                                      Rs.1,00,000/-
                                                                      from all
                                                                      Respondents.





     6.       What order?                                                                            As per final
                                                                                                     order

5. Considering the age and income of the deceased, it reached

to the final conclusion that the claimants are entitled to receive

Rs.1,00,000/- towards the compensation. On the point of liability of the

appellant, the Tribunal relied upon the decisions in the case of New India

fa146.2000.J.odt 4/11

Assurance Co. Ltd. Vs. Ansuya and others, 1989 ACJ, 400 and Raghunath

Vs. Shardabai, 1986 ACJ 640 (Bombay) as well as Skandia Insurance Co.

Vs. Kokilaben 1987 A.C.J. 411 (S.C.) and held that the liability of the

owner and the insurance company even in case of injury or death of a

labourer is co-extensive and therefore, the appellant and the respondent

nos.3 and 4 are jointly and severally liable to satisfy the award.

6. Mr. Pophaly, the learned Counsel appearing for the appellant

contended that the labourer travelling in a tractor trolley being not a

'third party' and no additional premium having been paid to cover such

risk which is evident from Exhs.61 and 62, the learned Tribunal went

wrong in holding that the appellant is liable to satisfy the award.

7. Mr. Badiye, the learned Counsel appearing for respondent

Nos.1 and 2 and Mr. Malke, the learned Counsel appearing for

respondent no.4, supported the judgment and award.

8. It is evident from the policy documents at Exhs.61 and 62

that no extra premium was paid to cover the liability arising out of an

injury or death of a labourer travelling in the vehicle. Before adverting

to the submissions advanced at bar, I shall deal with the decisions in case

of New India Assurance Co. Ltd. V. Ansuya and others, reported in 1989

ACJ 400, relied upon by the Tribunal. It was also the case of death of a

labourer who was being carried on the tractor trolley for loading and

unloading goods carried in it. The learned Single Judge of the Andhra

Pradesh High Court held that there is no prohibition under the Motor

fa146.2000.J.odt 5/11

Vehicles Act to carry the coolies for loading or unloading operation in a

vehicle which is registered for the purpose of agricultural operations.

After considering the decision of Apex Court in case of Skandia Insurance

Co. Ltd. V. Kokilaben Chandravadan and others, reported in 1987 ACJ 411

(SC), the learned Single Judge opined thus:

"Therefore, the Supreme Court has strictly construed the exclusionary clauses in the contract to elongate the object or the

purpose, namely, to give benefit of the insurance to the third

parties whose death or bodily injury has been occasioned on account of the user of the goods vehicles or passenger vehicles in

a public place and the compensation is payable to the victims or the legal representatives of the deceased persons. The immediate question that emerges is whether the contract of insurance of the

third parties includes the labour engaged by the owner of the vehicle for loading and unloading the sand for agricultural

operations for which the policy was admittedly taken. Though Mr. Somayajulu, learned counsel, is right in contending that for

travelling it is only the driver and the attendant for each tractor who is permitted under rule 302 read with rule 500 of the Motor Vehicles Rules and there is an implied prohibition against

carrying any persons as passengers in the trailer-cum-tractor, but there is no implied prohibition for carrying the coolies or the labourers for agricultural operations. The very object of the insurance of the agricultural operations is to engage the tractor in the operation of agriculture. As an incident thereto, carrying the coolies or the labourers for agricultural operations is an integral part of the main purpose of agricultural operations.

Therefore, when an accident has occurred in which one or some

fa146.2000.J.odt 6/11

of the labourers or coolies engaged have sustained injuries or have died due to rash and negligent driving of the driver of the

tractor, then it covers the third party risks. Obviously for that

reason the policy is taken and it is not necessarily of any person or persons other than those who were travelling in the vehicle as incidental to the agricultural operations. If this construction is

adopted, it would not only subserve the purpose of the contract of insurance but also the very object of carrying on the agricultural operations with the aid of the tractor towed with

trailer. Any other construction would defeat the purpose of the

insurance taken by the owner of the tractor-cum-trailer and also deprives the labourers or the coolies engaged in the agricultural

operations who were carried by the trailer-cum-tractor for the purpose".

9. The aforesaid view is mainly proceeded on the ground that

the labourer travelling in a trolley fills the character of 'third party' and

since there is no prohibition for carrying coolie or labourer in a vehicle

engaged for agricultural operations, the Court held that even an 'Act

policy' would cover the risk to the labourer.

10. Shri Malke, the learned Counsel appearing for the

respondent no.4 relied upon the decision in case of Ragunath Eknath

Hivale V. Shardabai Karbhari Kale and others, reported in 1986 ACJ 460.

In that case the truck loaded with basket of tomatoes was carrying 15 to

16 owners thereof. While trying to avoid collision with a jeep coming

from the opposite direction the truck entered a nearby field and turned

turtle and two persons walking on the road side came under the truck

fa146.2000.J.odt 7/11

and died. The Tribunal exonerated the insurance company of the truck

on the ground that the truck was carrying more than seven persons as

passengers which is prohibited under Bombay Motor Vehicles Rules.

After negativiting the finding the Division Bench of this Court held that

the breach of the condition of the permit is not the same thing for which

purpose it is issued. As far as 'third party' risk is concerned, the liability

is being statutory and it cannot be over-ridden by the terms of the

contract of insurance, between the parties. The aforesaid was a clear cut

case of risk to the third party since the compensation was claimed for the

death of the persons who were walking on the road.

11. The facts in the case of Skandia Insurance Co. Ltd. V.

Kokilaben Chandravadan and others (supra), were that the truck driver

had left the truck with engine in motion in charge of the cleaner who

was not holding driving licence. The cleaner drove the truck and caused

the accident. This was also a clear cut case of injury to the 'third party'

and not to the occupant of the vehicle.

12. The definition of "third party" occurring under Section 145

(g) of the Motor Vehicles Act is inclusive and includes the Government.

The provisions of Section 146 make it clear that it is the duty on the part

of the owner of the Motor Vehicle to obtain insurance policy against the

third party risk and with effect from 14.11.1994, injury to the owner of

goods or his authorised representative carried in the vehicle was also

added. Then, as per the proviso to Section 147, the policy shall not be

fa146.2000.J.odt 8/11

required to cover liability in respect of the death, arising out of and in the

course of his employment, of the employee of a person insured by the policy

or in respect of bodily injury sustained by such an employee arising out of

and in the course of his employment, other than a liability arising under

the Workmen's Compensation Act, 1923 in respect of death of, or bodily

injury to, an employee engaged in driving the vehicle, or who is a

conductor, if it is a public service vehicle or an employee being carried in a

goods vehicle or to cover any contractual liability. Sub-section (2) only sets

down the limits of the policy.

13. In the case of Oriental Insurance Co. Ltd. Vs. Meena Variyal

and others reported in (2007) 5 SCC 428, there was a death of a person

travelling in a car owned by his master. Admittedly, no additional

premium was paid to cover the persons other than third party. Their

Lordship observed thus:

"The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in

respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficult to hold that the Insurance Company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was

fa146.2000.J.odt 9/11

not the driver. Be it noted that the liability is not one arising under the Workmen's Compensation Act, 1923 and it is

doubtful, on the case put forward by the claimant, whether the

deceased could be understood as a workman coming within the Workmen's Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the

Insurance Company is not liable to indemnify the insured in the case on hand".

14. The next decision relied upon by Mr. Pophaly, the learned

Counsel for the appellant is in the case of New India Assurance Co. Ltd.

Vs. Sadanand Mukhi & Ors. reported in 2009(1) ALL MR 978. It was a

case of death of son of the owner of motor cycle while driving the

vehicle. It was observed thus:

"By taking an 'act policy', the owner of a vehicle fulfills his

statutory obligation as contained in Section 147 of the Act. The liability of the insurer is either statutory or contractual. If it is contractual its liability extends to the risk covered by the policy

of insurance. If additional risks are sought to be covered, additional premium has to be paid". (emphasis mine)

15. In the case of United India Insurance Company Limited Vs.

Suresh K.K. And another reported in (2008) 12 SCC 657, the claim was in

respect of injury suffered by "coolie worker" when he was sitting by the

side of the driver. The accident occurred because of rash and negligent

driving by the driver of the vehicle. Their Lordship observed thus:

"The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person

fa146.2000.J.odt 10/11

may be the owner of the goods or his authorised representative. The High Court, therefore, may be correct that the owner of the

goods would be covered in terms of the said provision. But the

question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a

capacity other than owner of the goods".

16. In the case of New India Assurance Co. Ltd. Vs. Asha Rani and

others reported in (2003) 2 SCC 223, interpreting the proviso to Section

95(1) of the 1939 Act and Section 147 of the 1988 Act, their Lordship

observed that there is a provision for compulsory coverage against the

death or bodily injury to any passenger of "public service vehicle". It

does not speak of any passenger in goods carriage. Therefore, the

provisions of the 1988 Act do not enjoin the statutory liability on the

owner of the vehicle to get his vehicle insured for any passenger

travelling in a goods vehicle and the insurer would not be liable thereof.

17. The legal position that emerges is unless the risk to the

employee/coolie travelling in a tractor trolley engaged for agricultural

operations is covered under the policy, of course, on payment of

additional premium, the statutory liability arising out of an accident

resulting in an injury or death of such employee or coolie cannot be

fastend on the insurer. In that view of the matter, the appellant -

original respondent no.3 are entitled to be exonerated from the liability.

However, the directions will have to be issued to the appellant -

fa146.2000.J.odt 11/11

insurance company to pay the amount to the claimants and realise the

same from the owner of the vehicle. In case of United India Insurance

Company Limited Vs. Suresh K.K. and another (supra), it was observed

thus:

"The question which arises for our consideration, however, is

keeping in view the fact that the accident took place on or about 13.08.1999, and further in view of the fact that the claimant

was a coolie worker as to whether he would be in a position to realise the dues from the owner of the vehicle. We think not.

Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that

with a view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle.