Delhi High Court
New India Assurance Co Ltd vs Rajesh Kumar & Ors on 20 January, 2016
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 20th January, 2016
+ MACA No.1053/2011 & CM APPL.21437/2011, 9204/2014
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Sameer Nandwani, Adv.
versus
RAJESH KUMAR & ORS ..... Respondents
Through: Mr. Pradeep L. Sati, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The insurance company is in appeal against directions in the
judgment dated 11.08.2011 of motor accident claims tribunal in motor
accident claim petition no.1254/2010 presented on 15.10.2007 by the
first respondent herein seeking compensation under Sections 166 and
140 of Motor Vehicles Act, 1988 (hereinafter referred to as "the MV
Act") for injuries suffered by him in motor vehicular accident that
occurred on 30.05.2003 near Mother Dairy Road, Ganesh Nagar
crossing, involving tractor-trolley bearing registration no.UP-23-5872
(hereinafter referred to as "the offending vehicle"). According to the
material on record, the offending vehicle was driven at the relevant time
and date by the second respondent herein, its owner Rekha Aggarwal
having been impleaded as party (third respondent herein). The tribunal
by the impugned judgment awarded compensation in the sum of
Rs.1,12,165/- and directed the appellant/insurer to pay the said sum with
interest to the claimant. It has been submitted at the outset that award
has since been satisfied by the appellant company by way of deposit in
the court, inter-alia, in terms of the order dated 28.11.2011.
2. Learned counsel for the appellant submitted that the only relief
pressed through the appeal at hand is the recovery rights on the ground
that the tractor was registered and insured as agricultural vehicle and
that the use of trolley as an attachment on a public road amounted to
breach of terms and conditions of the policy for which reason the insurer
is entitled to be reimbursed of the amount paid as compensation by the
registered owner.
3. The issue, as aforesaid, was raised before the tribunal and was
dealt with as under :-
" Sh. Charan Deep Singh, Administrative Officer, New
Indian Assurance Company Ltd., R-3W-1 deposed that notice
under Order 12 Rule 8 CPC was sent to the driver and legal heir
of owner and insured Smt. Rekha Aggarwal. Sh. Charan Deep
Singh exhibited the copy of notice as Ex.R-3W-1/A and the policy
as R-3W-1/D. He further stated that policy was issued for tractor
(for agriculture purpose only) and a trolley was attached with the
tractor and trolley was not insured under the policy and hence the
insurance company was not liable to pay.
Ld. Counsel for insurance company contended that tractor
no.UP-23-5872 was attached with trolley which was not insured
and the tractor was insured only for agricultural purpose
therefore the insurance company is not liable.
I have gone through the material on record. It is an
admitted fact that the tractor bearing no.UP-23-5872 was insured
as on the date of accident. The PW-1 has stated that the tractor
trolley was coming from wrong side and hit the petitioner's
vehicle. The police has filed chargesheet in the present matter
including the Mechanical inspection of the motorcycle as well as
of the tractor and trolley. From the material on record, it is not
clear as to whether the tractor or the trolley hit the petitioner.
The insurance company failed to lead any evidence that the
petitioner was hit by a trolley. Merely because a trolley was
attached with the tractor is not sufficient to absolve the insurance
company of liability.
Since insurance company has admitted the policy as on
date of accident therefore respondent no.3 is liable to pay the
compensation amount."
4. The learned counsel for the appellant has relied on the following
observations of the Supreme Court in Natwar Parikh & Co. Ltd. v. State
of Karnataka, (2005) 7 SCC 364:-
" Section 2(28) is a comprehensive definition of the words "motor
vehicle". Although, a "trailer" is separately defined under
Section 2(46) to mean any vehicle drawn or intended to be drawn
by a motor vehicle, it is still included into the definition of the
words "motor vehicle" under Section 2(28). Similarly, the word
"tractor" is defined in Section 2(44) to mean a motor vehicle
which is not itself constructed to carry any load. Therefore, the
words "motor vehicle" have been defined in the comprehensive
sense by the legislature. Therefore, we have to read the words
"motor vehicle" in the broadest possible sense keeping in mind
that the Act has been enacted in order to keep control over motor
vehicles, transport vehicles, etc. A combined reading of the
aforestated definitions under Section 2, reproduced hereinabove,
shows that the definition of "motor vehicle" includes any
mechanically propelled vehicle apt for use upon roads
irrespective of the source of power and it includes a trailer.
Therefore, even though a trailer is drawn by a motor vehicle, it by
itself being a motor vehicle, the tractor-trailer would constitute a
"goods carriage" under Section 2(14) and consequently, a
"transport vehicle" under Section 2(47). The test to be applied in
such a case is whether the vehicle is proposed to be used for
transporting goods from one place to another. When a vehicle is
so altered or prepared that it becomes apt for use for transporting
goods, it can be stated that it is adapted for the carriage of goods.
Applying the above test, we are of the view that the tractor-trailer
in the present case falls under Section 2(14) as a "goods
carriage" and consequently, it falls under the definition of
"transport vehicle" under Section 2(47) of the MV Act, 1988."
5. Having regard to the law on the subject as presented by the
counsel for the insurance, the issue arising between the insurer and
owner was not as to whether the accident had occurred on account of
collision against the tractor or the trolley attached to it. The issue
essentially related to the fact whether the tractor could be taken out with
a trolley attached to it on the public road without a permit in its regard
having been taken out in terms of the requirement of Section 66 of the
MV Act.
6. On being asked, the learned counsel for the owner (third
respondent) submitted that he would need opportunity to prove that the
tractor with trolley had been taken out lawfully on the public road.
7. Both sides fairly agreed that the issue arising as above may be
remanded to the tribunal for limited inquiry and adjudication. If the
contention of the insurance company is upheld, the tribunal shall be duty
bound to grant the recovery rights to it against the owner. Ordered
accordingly.
8. For aforementioned purpose, the parties are directed to appear
before the tribunal on 28th March, 2016.
9. Statutory deposit, if made, shall be refunded.
10. The amount of compensation deposited in the court in terms of
the impugned judgment and interim order shall be released in favour of
the claimants.
11. The appeal is disposed of with above observations/directions.
R.K. GAUBA
(JUDGE)
JANUARY 20, 2016/ssc
