Madhya Pradesh High Court
United India Insurance Comp.Ltd. vs Smt.Bhuribai & Ors. on 4 March, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 4 th OF MARCH, 2024
MISC. APPEAL No. 2841 of 2008
BETWEEN:-
UNITED INDIA INSURANCE COMPANY LIMITED,
THROUGH DEPUTY MANAGER, LEGAL CELL, INDORE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI MONISH H. JINDAL - ADVOCATE FOR APPELLANT -
INSURANCE COMPANY.)
AND
1. SMT. BHURIBAI W/O SHANKAR, AGE: 45 YEARS,
OCCUPATION: HOUSEHOLD WORK, R/O:
SEMALIYA, NAVAPADA, TEHSIL THANDLA,
DISTRICT JHABUA (MADHYA PRADESH)
2. KU. RAMKANYA D/O SHANKAR, AGE: 17 YEARS,
MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT. BHURIBAI W/O SHANKAR, R/O:
SEMALIYA, NAVAPADA, TEHSIL THANDLA,
DISTRICT JHABUA (MADHYA PRADESH)
3. ANIL S/O SHANKAR, AGE: 8 YEARS, MINOR
THROUGH NATURAL GUARDIAN MOTHER SMT.
BHURIBAI W/O SHANKER, R/O: SEMALIYA,
NAVAPADA, TEHSIL THANDLA, DISTRICT
JHABUA (MADHYA PRADESH)
4. RAJENDRA SINGH S/O JUJHAR SINGH RAJPUT,
R / O : INDRALOK NAGAR, RATLAM, DISTRICT
RATLAM (MADHYA PRADESH)
5. RAM SINGH S/O PADAM SINGH, CASTE PANWAR,
R/O: NARELA, TEHSIL THANDLA, DISTRICT
JHABUA (MADHYA PRADESH) DEAD
(Amended as per Court order dated 23.10.2009)
DECEASED THROUGH LEGAL REPRESENTATIVE:
-
JHUJAR SINGH S/O RAM SINGH, AGE: 38 YEARS,
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 3/5/2024
7:39:44 PM
2
OCCUPATION: AGRICULTURE, R/O: NARELA,
TEHSIL THANDLA, DISTRICT JHABUA (MADHYA
PRADESH)
.....RESPONDENTS
(NONE PRESENT.)
T h is appeal coming on for award this day, t h e cou rt passed the
following:
ORDER
The appellant - Insurance Company has filed this appeal under Section
173 of the Motor Vehicles Act, 1988 being aggrieved by award dated
20.08.2008 passed in Claim Case bearing number MACC/64/2007 by Learned
Additional Member of Motor Accident Claims Tribunal, Jhabua, District Jhabua
(M.P.) whereby the Insurance Company though has been exonerated, but
directed to pay compensation to the claimants with a liberty to recover from the
owner and driver of the offending vehicle.
2. As per the facts of the case, claim case was filed by mother, brother and
sister of deceased Mangilal S/o Shankar, who was travelling in tractor bearing
registration number MP-45 M-1755 owned by Ram Singh S/o Padam Singh
(respondent No.5 herein, who died and his legal heir has been brought on
record vide order dated 23.10.2009).
3. On 29.04.2007 deceased Mangilal S/o Shankar was returning from
Chaporipada Talab, after doing the work of labour. He sat on the aforesaid
tractor, which over turned and he fell and died. He was taken to Primary Health
Centre, Thandla, District Jhabua where he was declared dead. First Information
Report (FIR) was lodged under Sections 279, 337 and 304-A of Indian Penal
Code, 1860 vide Crime No.233 of 2007 against driver of the tractor Rajendra
Singh S/o Jujhar Singh Rajput (respondent No.4 herein) Ex.P/1.
4. The claimants submitted a claim before the Motor Accident Claims
Tribunal, Jhabua, District Jhabua claiming compensation of Rs.37,25,000/-
(rupees thirty seven lakhs twenty five thousand only). The owner and driver
became ex parte and the claim was contested by Insurance Company before
the Claims Tribunal solely on the ground that the tractor was being run in
violation of the policy of the Insurance Company, therefore, the Insurance
Company is not liable to pay the compensation to the claimants.
5. Learned M.A.C.T. framed four issues for adjudication. After appreciating
the evidence, the learned Claims Tribunal has awarded a total compensation
amount of Rs.2,82,500/- (rupees two lakhs eight two thousand hundred) against
owner and driver of the tractor, however, the Insurance Company has been
directed to pay the compensation with a liberty to recover the same. Only that
part of the award is being challenged by the appellant - Insurance Company by
way of this appeal.
6. Learned counsel appearing for the appellant - Insurance Company submits
that it was a farmer policy in which only the driver of the tractor was covered.
Even otherwise, the tractor was being used for other than agriculture purpose.
It was transporting the water from construction site of the dam in a tanker,
attached with the tractor.
7. Learned counsel has read out the findings recorded by the learned Claims
Tribunal in para 18 to 21 of the impugned award in which the Claims Tribunal
has found that there was violation of the terms and conditions of the policy and
exonerated the Insurance Company, but wrongly directed to pay and recover
from owner and driver.
8. Learned counsel has placed reliance on the following judgments of the
Madhya Pradesh High Court, Bench at Gwalior: -
Nathusingh Kushwah & another v. Narayan Singh & others
reported as 2010 ACJ 2749 (Paras 7, 8 and 9);
Mithlesh & others v. Brijendra Singh Baghel & others reported as
2007 ACJ 10 (Para 7); and
Raj Bai and others v. New India Assurance Company Limited &
others reported as 2008 ACJ 2017 (Para 10).
9. Relevant paras 7, 8 and 9 of judgment in case of Nathusingh Kushwah
(supra) are reproduced, as under: -
"7. Hon''ble Supreme Court in the case of United
India Insurance Company Limited Vs. Serjerao and
others, 2008 ACJ 254 (SC), with regard to liability
of the persons travelling in a trolley has held as
under:
(8) So far as the question of liability regarding
labourers travelling in trolleys is concerned, the
matter was considered by this Court in Oriental
Insurance Company Ltd. v. Brij Mohan, 2007
A.C.J. 1909 (SC) and it was held that the
Insurance Company has no liability. In view of the
aforesaid two decisions of this Court, we set aside
the impugned order in each case and remit the
matters to the High Court to consider the matters
afresh in the light of what has been stated by this
Court in Yallawwa v. National Insurance
Company Ltd. 2007 A.C.J. 1934 (SC) and Brij
Mohan's case (supra)."
8. Hon'ble Supreme Court further held in the case of
New India Assurance Company Ltd. v. Vedwati ,
2007 A.C.J. 1043 (SC), with regard to liability of
payment of compensation by the insurance company
for the passengers travelling in the goods vehicle as
under:
"(11) Third party risks in the background of
vehicles which are subject matter of insurance
are dealt with in Chapter VIII of the old Act and
Chapter 11 of the Act. Proviso to Section 147 of
the Act (sic) is to be (sic) with Section 96 of the
old Act. Proviso to Section 147 of the Act reads
as follows:
''Provided that, a policy shall not be required-
(i) 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 (8 of 1923) in respect
of the death of or bodily injury to, any such
employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as
conductor of the vehicle or in examining tickets
on the vehicle, or
(c) if it is a goods carriage, being carried in the
vehicle, or
(ii) to cover any contractual liability.''
(12) It is of significance that proviso appended to
Section 95 of the old Act contained Clause (ii) which
does not find place in the Act. The same reads as
follows:
'except where the vehicle is a vehicle in which
passengers are carried for hire or reward or by
reason of or in pursuance of a contract of
employment to cover liability in respect of the
death of or bodily injury to persons being carried
in or upon or entering or mounting or alighting
from the vehicle at the time of the occurrence of
the event out of which a claim arises, or
(13) The difference in the language of 'goods vehicle'
as appear in the old Act and ''goods carriage'' in the
Act is of significance. A bare reading of the
provisions makes it clear that the legislative intent
was to prohibit goods vehicle from carrying any
passenger. This is clear from the expression 'in
addition to passengers' as contained in definition of
''goods vehicle'' in the old Act. The position becomes
further clear because the expression used is 'goods
carriage' is solely for the carriage of goods. Carrying
of passengers in a goods carriage is not contemplated
in the Act. There is No. provision similar to Clause
(ii) of the proviso appended to Section 95 of the old
A c t prescribing requirement of insurance policy.
Even Section 147 of the Act mandates compulsory
coverage against death of or bodily injury to any
passenger of ''public service vehicle''. The proviso
makes it further clear that compulsory coverage in
respect of drivers and conductors of public service
vehicle and employees carried in goods vehicle
would be limited to liability under the Workmen''s
Compensation Act, 1923 (in short ''W.C. Act'').
There is no reference to any passenger in 'goods
carriage'.
(14) The inevitable conclusion, therefore, is that
provisions of the Act do not enjoin any statutory
liability on the owner of a vehicle to get his vehicle
insured for any passenger travelling in a goods
carriage and the insurer would have No. liability
therefor."
9. A Division Bench of this Court in the case of Arun
Kumar Patel v. Terasi Saket ILR (2008) M.P. 282,
with regard to liability of the payment of
compensation to the persons travelling in trolley
attached with a tractor as baratis held as under:
"10. Coming to the submission based on Rule 97
of M.P. Motor Vehicles Rules, that has been
considered by a Full Bench of this Court in Bhav
Singh Vs. Smt. Savirani & others, in which the
Full Bench has opined that Rule 97 is not with
respect to Section 147 of the Motor Vehicles
Act. Rule 97 has been framed with respect to
permit conditions not to cover the risk u/s 147
which is contained in a different chapter of
Motor Vehicles Act. Full Bench of this Court
has held thus:
'(12) Regarding the Division Bench judgment in
Sarvanlal's case, 2005 A.C.J. 1401 (M.P.), we
find that Division Bench has relied on not only
the judgment of the Full Bench in Jugal Kishore
and Another Vs. Ramlesh Devi and others, but
also Clause (vii) of Rule 97 of the Motor
Vehicles Rules, 1994 (for short, ''the Rules of
1994) made by the State of M.P. So far as the
judgment of the Full Bench in Jugal Kishore
(supra), is concerned, we have already clarified
the position of law. Regarding Clause (7) of
Rule 97 of the Rules of 1994, we find that the
Rules of 1994 have been made by the State of
M.P. u/s 96 of the Act and in particular Sub-
section (2) (xxxi) which provides that without
prejudice to the generality of the foregoing
power, rules u/s 96 may be made with respect to
the carriage of persons other than the driver in
goods carriage. Section 96 is placed in Chapter
5 of the Act which relates to "Control of
Transport Vehicles". Sub-section (1) of Section
96 of the Act states that the State Government
may make rules for the purpose of carrying into
effect the provisions of Chapter V. Hence, Rule
97 of the Rules of 1994 has been made by the
State Government to give effect to the provisions
of Chapter V of the Act, which, as we have seen
relates to control, of transport vehicles. These
rules obviously cannot have a bearing in
interpreting the provisions of Chapter XII of the
Act including Sections 145 and 147 of the Act.
As we have indicated above, the liability of the
insurer to indemnify the insured in respect of
death or bodily injury suffered by a passenger or
an employee would be covered by the
provisions of Section 147 of the Act or the terms
and conditions of insurance policy. Thus, the
decision of the Division Bench in Sarvanlal
(supra), insofar as it relies on Rule 97 of the
Rules of 1994 to hold the insurer liable for death
or bodily injury suffered by the passengers does
not lay down the correct law''."
Relevant para 7 of judgment in case of Mithlesh (supra) is reproduced, as
under: -
"7. Thus, from the aforesaid evidence on record, it is
clear that the tractor was insured for agricultural
purpose and at the relevant time the same was not being
used for agricultural purposes. It is not the case of the
appellants that the owner or his representative was
travelling on the vehicle along with the goods.
Therefore, from the aforesaid discussion it is clear that
the insurance company is not liable for payment of any
compensation as the liability of the deceased is not
covered under the policy and more so it is not the case
of third party risk as the deceased was not third party."
In which the Insurance Company has not been directed to pay and
recover the amount on the ground of policy.
10. In view of the above decisions, admittedly in this case, except driver of
the tractor, no one was covered with the Insurance Policy. There is no finding
that the vehicle was being driven for agriculture purpose, therefore, the
Insurance Company is not liable to pay the compensation. Hence, the
impugned award is modified and the direction given in para 21 of the award is
hereby set aside. Rest of the award is maintained.
(VIVEK RUSIA)
JUDGE
rcp
