Jharkhand High Court
The Branch Manager vs Mangri Devi on 4 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 21 of 2012
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The Branch Manager,
Oriental Insurance Company Limited,
Branch Office at Hotel Novelty,
Powerganj Chowk, Lohardaga,
P.O., P.S. & District Lohardaga,
represented through its Deputy Manager & In-Charge,
Legal Cell, Prabodh Tower, 3rd Floor, S.N. Ganguli Road,
Ranchi, P.O. G.P.O., P.S. Kotwali, District Ranchi .... .... Appellant
Versus
1. Mangri Devi
wife of Late Raju Mahto
2. Sarojani Kumari,
daughter of Late Raju Mahto
3. Kailash Mahto,
son of Late Raju Mahto
4. Sanjeet Mahto,
son of Late Raju Mahto
5. Chotu Mahto,
Son of Late Raju Mahto
Respondent Nos. 2 to 5 represented
through their mother and natural guardian,
Mangri Devi, wife of Late Raju Mahto,
All residents of Barmal, P.O. Andali Jambahar,
P.S. Raiboga, District Sundergarh (Orissa)
6. Prabhu Sahay Kujur, S/o Pawel Kujur,
R/o Purna Samtoli, PO, PS & Distt. Simdega .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. Manish Kumar, Advocate
For the Respondents : Md. Zaid Ahmed, Advocate
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C.A.V. ON: 24.02.2022 PRONOUNCED ON 04 .03.2022
1. This appeal has been preferred by the Insurance Company against the
judgment and award of compensation passed in M.A.C.C. Case No. 24 of
2005 passed by Principal District Judge-cum-M.A.C.T., Simdega whereby
and whereunder Rs.4,10,000/- as compensation in favour of claimants and
Rs.11,000/- towards fee of claimants' lawyer with interest at the rate of 7%
from the date of judgment has been awarded.
2. The appeal has been filed mainly on the ground that the tractor was
insured by the appellant-Insurance Company under Kisan Package Policy
which covers only third party damage, personal accident insurance of owner
and driver and building of insured against fire and burglary. Under the term
of policy, the vehicle was intended to be used only for agricultural purpose
and not for commercial purpose like transporting goods and passengers. As
per claimant's case and the findings recorded, the deceased was travelling
on trailer along with goods when the accident took place. In this way, there
was a definite breach of terms and conditions of Insurance Policy and being
a gratuitous passenger, he will not come within the meaning of third party.
3. Learned counsel appearing on behalf of Insurance Company has
relied on a judgment in the case of Oriental Insurance Co. Ltd. v. Brij
Mohan, (2007) 7 SCC 56 :
"11. Although the effect of 1994 amendment in the Motor Vehicles Act
did not call for consideration in Asha Rani [New India Assurance Co.
Ltd. v. Asha Rani, (2003) 2 SCC 223 : 2003 SCC (Cri) 493], a Three-
Judge Bench of this Court had the occasion to consider the said question
in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1 : 2004
SCC (Cri) 370] in the following terms : (SCC pp. 7-8, paras 17-19)
"17. By reason of the 1994 amendment what was added is 'including
owner of the goods or his authorised representative carried in the
vehicle'. The liability of the owner of the vehicle to insure it
compulsorily, thus, by reason of the aforementioned amendment
included only the owner of the goods or his authorised representative
carried in the vehicle besides the third parties. The intention of
Parliament, therefore, could not have been that the words 'any person'
occurring in Section 147 would cover all persons who were travelling in
a goods carriage in any capacity whatsoever. If such was the intention,
there was no necessity of Parliament to carry out an amendment
inasmuch as the expression 'any person' contained in sub-clause (i) of
clause (b) of sub-section (1) of Section 147 would have included the
owner of the goods or his authorised representative besides the
passengers who are gratuitous or otherwise.
18. The observations made in this connection by the Court in Asha Rani
case [New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223:
2003 SCC (Cri) 493] to which one of us, Sinha, J., was a party, however,
bear repetition: (SCC p. 235, para 26)
'26. In view of the changes in the relevant provisions in the 1988 Act vis-
à-vis the 1939 Act, we are of the opinion that the meaning of the words
'any person' must also be attributed having regard to the context in
which they have been used i.e. 'a third party'. Keeping in view the
provisions of the 1988 Act, we are of the opinion that as the provisions
thereof do not enjoin any statutory liability on the owner of a vehicle to
get his vehicle insured for any passenger travelling in a goods vehicle,
the insurers would not be liable therefor.'
19. In Asha Rani [New India Assurance Co. Ltd. v. Asha Rani, (2003) 2
SCC 223 : 2003 SCC (Cri) 493] it has been noticed that sub-clause (i) of
clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of
liability which may be incurred by the owner of a vehicle in respect of
death of or bodily injury to any person or damage to any property of a
third party caused by or arising out of the use of the vehicle in a public
place. Furthermore, an owner of a passenger-carrying vehicle must pay
premium for covering the risks of the passengers travelling in the vehicle.
The premium in view of the 1994 amendment would only cover a third
party as also the owner of the goods or his authorised representative and
not any passenger carried in a goods vehicle whether for hire or reward
or otherwise."
The above ratio decided in Brij Mohan case has been followed in
United India Insurance Co. Ltd. v. Serjerao, (2008) 7 SCC 425 wherein it
has been held that regarding labourers travelling in trolleys is concerned,
the Insurance Company has no liability.
4. Authority relied upon shall not apply to the present case since the
deceased was not travelling as a passenger rather he was travelling on the
trailer attached to the tractor along with the goods he had purchased from
the market. The claimant the widow of the deceased has deposed in para 2
that her husband was in the trade of vegetables. After loading the vegetables
on the trailer she along with her husband were coming from the market after
paying a fare of Rs 200 when the accident took place. Other witnesses have
also deposed to the same effect. The insurance policy has been adduced into
evidence as Ext 4 which is a Kisan Package Policy issued by The Oriental
Insurance Company for the year 2004. In the facts of the present case the
ratio relied upon, does not help the Insurance Company. It is the consistent
case of the claimants that the deceased was accompanying the vegetables
which he had purchased from the vegetable market. Thus he will not come
in the category of the passenger travelling on the trailer, but he was the
owner of the goods being carried on the trailer and he was travelling with it.
After the 1994 amendment there is a statutory liability to insure the vehicle
for not only third party but also to cover the risk for the owner of the goods
or his representative travelling with the consignment. Section 147 of the
M.V. Act provides statutory mandate for insurance to cover not only third
party risk, but also to cover the owner or the representative of the goods
travelling in the vehicle. The relevant part of the provision reads as under :
S.147 Requirements of policies and limits of liability
(1) In order to comply with the requirements of this Chapter, a policy of
insurance must be a policy which -
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to
the extent specified in sub-section (2)-
(i) against any liability which may be incurred by him in
respect of the death of or bodily 1[injury to any person, including
owner of the goods or his authorised representative carried in the
vehicle] or damage to any property of a third party caused by or
arising out of the use of the vehicle in a public place;
In view of the express provision, a policy of insurance must cover not
only third party but also the owner or his representative travelling along
with the goods. The Insurance Company cannot exclude these terms under
any garb. Any term of Insurance Policy in contravention to it, shall be void
to that extent in view of the express mandate of the Act and the ratio
decided in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC
297.
5. In view of the above stated position of law the defence that the term of
policy did not cover the deceased since the tractor was not a goods carrying
vehicle is of no avail. Any term of exclusion of liability under a policy of
insurance which is offered to gullible customers from farm sector, in
contravention to the express provision of law under M.V. Act, cannot be
acted upon. In any case, the trailer of a tractor can only be used for goods
and to contend that trailer was insured only for agricultural purpose is
without any basis. It has come in evidence that the trailer was carrying
vegetables at the time of accident which is agricultural produce.
6. Under the circumstance and for the reasons discussed above I find that there
has not been any breach of term and condition of Insurance policy to entitle
the Insurance Company to right of recovery.
7. The compensation of Rs.10,000/- awarded for paying lawyer's fees is
without any legal basis and is accordingly set aside.
8. The age of the deceased was 30 years and Rs.3,000/- has been accepted by
the learned Tribunal as the monthly income and he is survived by five heirs.
The compensation amount shall accordingly work out as per the table given
below:
Annual Income - Rs.3,000/-x12 Rs.36,000/-
Annual dependency after deducting Rs.28,800/-
1/5th on the living and personal
expenses of the deceased
Taking multiplier of 17 considering Rs.28,800/- x 17 = Rs.4,89,600/-
the age of the deceased to be 30 years
Future Prospect @ 40% Rs.1,95,840/-
Conventional head Rs.77,000/-
Total Rs.5,66,600/-
The claimants shall therefore be entitled to compensation of
Rs.5,66,600/- with interest @ of 7.5% per annum on the compensation
amount from the date of filing of claim application from the appellant
Insurance Company. The Insurance Company is accordingly directed to
make payment of the compensation amount to the Tribunal within a month
of this order. The Tribunal shall pay the compensation amount to the
claimants after proper identification in the manner given below:
A. 60% of the total compensation amount to be paid to Claimant
No.1
B. 10% of the compensation amount to be paid to each of the
claimant Nos. 2 to 5 jointly with claimant No.1
C. In case of the claimants below 21 years the amount to be fixed
deposited till they attain the age of 21 years.
The appeal is dismissed with the above modification of the award.
The Insurance Company is permitted to withdraw the statutory amount
deposited while filing the appeal.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 4th March, 2022
AFR / Anit
