United India Insurance Company ... vs Bipinbhai Narsingbai Chaudhary
2022 Latest Caselaw 2798 Guj

     C/FA/2833/2013                                CAV JUDGMENT DATED: 11/03/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2833 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== UNITED INDIA INSURANCE COMPANY LIMITED.

Versus BIPINBHAI NARSINGBAI CHAUDHARY & 2 other(s) ========================================================== Appearance:

MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1 MR VIJAY H NANGESH(3981) for the Defendant(s) No. 2,3 MR.HIREN M MODI(3732) for the Defendant(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 11/03/2022

CAV JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant - insurance company, being aggrieved and dissatisfied with the judgment and award dated 30.04.2021 passed by the Motor Accident Claims Tribunal (Main), Tapi at Vyara in Motor Accident Claim Petition No.530 of 2012 (New MACP No.291 of 2012), by which the Tribunal has awarded

C/FA/2833/2013 CAV JUDGMENT DATED: 11/03/2022

Rs.5,23,600/- with 9% per annum interest to the claimants, by holding Opponents No.1 to 3 i.e. driver, owner and insurance company of the offending vehicle liable, jointly and severally.

2. Brief facts of the case are as under :

2.1 On 29.10.2009 at about 3:00 p.m., the claimant has gone to the field of one Dipakbhai Chaudhary as a labourer for cutting the Soybeans Crop through the Thresher. First the said Thresher machine cuts the crop and after keeping it in off condition, collected the crop from it and putting in the tractor-trolley. The work which was assigned to the claimant was to collect the Soybeans crop from the Thresher and put it in the tractor. When he was collecting the crop from the Thresher and putting it in the tractor, the Thresher machine was off at that time. While he was going to put the crop in the tractor from the said Thresher machine, the driver of the machine has started the Thresher and therefore, his left leg has crushed in the said machine. The claimant got serious injuries and he was immediately shifted to the New Civil Hospital, Surat, where his left leg below the knee has been amputated. The age of the claimant at that time was 21 years and he was earning Rs.4,000/- per month, as stated in the claim petition by the claimant. The claimant has therefore filed a claim petition before the Tribunal for getting compensation.

2.2 Notices were served to the opponents i.e. driver, owner and insurance company. The driver and owner were appeared through their advocate and has filed written statement at Exh.16, whereas the insurance company was appeared through its advocate but not filed its written statement before the Tribunal. The Tribunal has framed the issues at Exh.19. The oral as well as documentary

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evidence were led before the Tribunal. After considering the submissions made by learned advocates for the rival parties, the Tribunal has passed the impugned judgment and awarded compensation of Rs.5,23,600/- with 9% p.a. interest to the claimants, by holding opponents jointly and severally liable.

2.3 Hence, the present appeal by the Insurance Company before this Court.

3. Learned advocate Mr. Palak Thakkar for the appellant - insurance company has submitted that the claimant was sitting in the trolley attached with the tractor and working on the Thresher in the field and therefore, in view of Section 2(34) of the Motor Vehicles Act, 1988, the insurance company cannot be held liable to pay the amount of compensation. He has submitted that the claimant is not an employee of the tractor. He has submitted that he can be considered as an unthorised passenger sitting in the tractor. In support of his submissions, he has relied on the decision of this Court rendered in First Appeal No.2214 of 1999 dated 07.02.2012 and has submitted that the insurance policy of the tractor is 'Farmer Package Policy', which is produced on record at Exh.38. Therefore, since the present claimant is neither owner nor employee of the tractor and therefore, his risk cannot be covered and furthermore, he has tried to point out from the impugned judgment by contending that the Tribunal has not given any finding regarding the liability aspect. Except these, no other grounds / submissions is made by learned advocate for the appellant. He has submitted that this appeal may be allowed.

4. Per contra, learned advocate Mr. Hiren Modi for the respondent No.1 and Mr. Vijay Nangesh for respondent Nos.2 and 3

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have supported the impugned judgment and award passed by the Tribunal. Mr. Modi, learned advocate has submitted that it is a clear case of the claimant who has suffered injuries while working on the tractor in the agriculture field in loading and unloading the crop in the Thresher and when he tried to get down from the tractor, his left leg came into the joint of the Thresher and he received injuries and finally, his leg is required to be imputed. He has further submitted that in fact, the Insurance company should not take any contention and more particularly regarding the finding of the Tribunal about the liability aspect, as the insurance company has failed to even submit its written statement and contest the claim petition before the Tribunal. Therefore, now it is not open for the insurance company to take any contention regarding the liability aspect before this Court in the present appeal. He has further submitted that in view of the decision of our own High Court reported in 2008 ACJ 2486 in the case of Oriental Insurance Company Ltd. versus Savdhanji Khodaji Thakore, where it was the similar case and when the tractor attached with the Thresher was moved by the tractor while labourer engaging for the crop and has received injuries and the Tribunal has held the insurance company liable and our High Court has upheld it. He has also relied on the decision of Rajasthan High Court in the similar set of circumstances in the case of National Insurance Company versus Meera reported in 2010 (1) TAC 254 (Raj.) and has submitted that from the FIR and Panchnama as well as affidavit in support of claim petition, it clearly transpires that the accident has occurred while the claimant was working in the field as a labourer and after cutting the crop of Soybeans by Thresher machine, the claimant was trying to get down from the tractor and at that point of time, the accident has occurred as his left leg has come into the Thresher and has received serious injuries. Therefore, he has submitted that the insurance company cannot escape from its

C/FA/2833/2013 CAV JUDGMENT DATED: 11/03/2022

liability. He has submitted that this appeal may be dismissed.

5.1 I have heard learned advocate for the respective parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. I have also considered the pleadings on record. Looking to the facts of the present case, I found that the judgment cited by Mr. Thakkar, learned advocate will not helpful to his case as the facts are different in those judgments but judgment cited by learned advocate Mr. Modi of our own High Court in the case of Savthanji Khodaji Thakor (supra) is squarely applicable to the present case, as in the identical situation of facts, the Hon'ble Court has observed as under :

"6. The accident in question took place when not only the thresher was attached to the tractor, but when the thresher was bring moved with the help of the tractor. Since the right hand of the claimant was crushed in the thresher and the claimant had to be rushed to the hospital where the claimant's right upper arm was required to be amputated at the level of upper third of forearm, and when the claimant had given the history of vehicular accident (tractor with thresher) when he was admitted to the hospital for treatment. It cannot be said that the claimant has come before the Tribunal with an after thought. In the facts and circumstances of the case, the Tribunal has also rightly negatived the case of the tractor driver that the claimant was under the influence of alcohol."

More particularly, when the insurance company has remained careless by not even filing the written statement before the Tribunal, even then, since the legal contention is raised by the insurance company, I have considered the same about the liability to pay the

C/FA/2833/2013 CAV JUDGMENT DATED: 11/03/2022

compensation, which is found meritless in view of above mentioned decision and facts of the present case where admittedly, the claimant was working as a labourer and cutting Soybeans through Thresher, sitting in the stationary tractor and while he was getting down from the tractor, his leg has come in the Thresher and received injuries. Therefore, the contention that it cannot be said that the accident is arising out of use of motor vehicle is also found very weak and cannot be accepted.

5.2 Moreover, the contention that the Tribunal has not discussed this aspect in the impugned judgment, it is obvious that when the insurance company has not raised such contention before the Tribunal, how can the Tribunal be dealt with it. Therefore, the same was not discussed by the Tribunal. Therefore, I found no substance in the present appeal. The Tribunal has rightly passed the impugned judgment and award. This appeal therefore deserves to be dismissed.

6. For the reasons recorded above, the following order is passed.

6.1 The present appeal is dismissed with no order as to costs.

6.2 The amount lying with the Tribunal and/or in the FDR, shall be disbursed by the Tribunal to the claimant(s), with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure.

6.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE