Madhya Pradesh High Court
United India Ins.Co.Ltd. vs Sagram & Ors. on 6 May, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 6 th OF MAY, 2024
MISC. APPEAL No. 1759 of 2008
BETWEEN:-
UNITED INDIA INS.CO.LTD. LEGAL CELL,INDORE
THRU.DY.MANAGER,V FLOOR,IDA BUILD.,RACE
COURSE ROAD, INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI BHASKAR AGRAWAL, LEARNED COUNSEL FOR THE APPELLANT).
AND
1. SAGRAM & ORS. S/O SURU @ SINGH, AGED
ABOUT 20 YEARS, OCCUPATION: KUSHAL
SHRAMIK BAGPURA,THANA
BAGH,TEH.KUKSHI,DHAR (MADHYA PRADESH)
2. SANDEEP S/O JAYANTILAL KARMA, AGED ABOUT
22 YEARS, OCCUPATION: DRIVER TIKRI DISTT
BADWANI AT PRE: GULJHARA DHAMNOD
(MADHYA PRADESH)
3. KANHAIYA S/O MANGILAL, AGED ABOUT 40
Y E A R S , OCCUPATION: AGRI. GULJHARA
DHAMNOD (MADHYA PRADESH)
.....RESPONDENTS
(SHRI MANISH JAIN, LEARNED COUNSEL FOR THE RESPONDENTS)
MISC. APPEAL No. 2175 of 2008
BETWEEN:-
SANGRAM SINGH S/O SURU @ SINGH, AGED ABOUT 20
Y E A R S , OCCUPATION: LABOUR
BAGHPURA,PS.BAGH,TEH.KUKSHI,DHAR (MADHYA
PRADESH)
.....APPELLANT
Signature Not Verified
(SHRI MANISH JAIN, LEARNED COUNSEL FOR THE APPELLANT).
Signed by: HARIKUMAR
NAIR
Signing time: 5/10/2024
5:18:13 PM
2
AND
1. SANDEEP VERMA & 2 ORS. S/O JAYANTILAL
VERMA, AGED ABOUT 22 YEARS, OCCUPATION:
DRIVER GULJHERA,DHAMNOD,DHAR (MADHYA
PRADESH)
2. KANHIYA S/O MANGILAL PATIDAR, AGED ABOUT
40 YEARS, OCCUPATION: OWNER GRAM
GULJHERA DHAMNOD (MADHYA PRADESH)
3. THE UNITED INDIA INSURANCE CO LTD D.O.2
BLOCK NO.9 VTH FLOOR,I.D.A BUILD.,RACE
COURSE ROAD IN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHASHKAR AGRAWAL, LEARNED COUNSEL FOR THE
RESPONDENT [R-3].
MS.REKHA SHRIVASTAVA, LEARNED COUNSEL FOR THE RESPONDENT
[R-2].
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
This common order shall govern disposal of M.A.No.1759/2008 &
M.A.No.2175/2008 as they arise out of a common award arising out of the
same accident.
2. M.A.No.1759/2008 has been filed by the insurance company under
section 173(1) of the Motor Vehicles Act arising out of the award dated
08.04.2008 passed by MACT (Fast Track), Kukshi, district Dhar in claim case
no.108/07 seeking exoneration from the liability whereas M.A No.2175/2008 has
been filed by the claimants on the ground of inadequacy of the compensation
amount and seeking enhancement of compensation.
3. The date of accident and negligence are not in dispute in this case and
the findings recorded by the Tribunal in this regard are not in question. For the
permanent disability suffered by the appellant/claimant, the Tribunal has
awarded a total compensation of Rs.2,42,400/- in favour of the claimant from
the date of filing of the claim petition till its realization.
4. The insurance company has filed the appeal on the ground that
Tribunal has committed an error in holding that the insurance company is liable
for pay and recover. It is further submitted that the Tribunal has not considered
the provision of sections 147 & 149 of the Motor Vehicles Act and contended
that when the insurance company has not taken any premium of the claimant,
therefore, the company is not liable to pay the compensation.
5. On the other hand, learned counsel for the claimant has prayed for
dismissal of the appeal filed by the company.
6. Heard learned counsel for the parties and perused the record.
7. The offending vehicle i.e. the tractor was insured with the insurance
company for agricultural purpose and was made it clear that it was only for the
use of agriculture purpose. The claimant came up with the evidence that the
claimant was the employee of the owner of the offending vehicle and he was
going to the agricultural field on the tractor for doing agriculture work. As per
the FIR claimant was coming from village Guljhera and due to rash and
negligent driving of the tractor the accident had occurred. The Tribunal has
held that at the time of accident no agricultural work was doing and no
equipment was used in the transportation for agriculture produce. It was
mentioned in the FIR that the tractor was going for agricultural work, so as per
the statement of the claimant recorded by the police it is clearly established that
the tractor was going for doing agricultural work. So Tribunal has committed
an error in holding that at the time of accident the tractor was not going for
agricultural work. As per the evidence adduced by the insurance company it is
clearly established that the insurance company took premium for one person
who is the employee of the owner.
8. The Full Bench of this High Court in the case Bhav Singh Vs.
Savirani and others reported in 2008 (1) MPLJ 72 (FB), held the mere fact
that a passenger is a third party would not fasten liability on the insurer unless
such liability arises under section 147 of the Act or under the terms and
conditions of the insurance policy. Similarly, an employee is a third party
inasmuch as he is not a party to the insurance policy. But merely because an
employee is a third party, the insurance company would not be liable to
compensate in case such an employee suffers bodily injury or dies in an
accident in which the motor vehicle is involved unless section 147 of the Act
fixes such liability on the insured or unless the terms and conditions of the
contract "of insurance fixes liability on the insurer.:-
10. Sub-section (5) of section 147 of the Act, however, provides that notwithstanding anything contained in
any law for the time being in force, an insurer issuing a policy of insurance under section 147 of the Act shall be
liable to indemnify a person or classes of persons specified in the policy in respect of any liability which the
policy purports to cover in the case of that person or classes of persons. Thus, if the policy of insurance covers
any liability in addition to the liability under section 147(1) of the Act, the insurer will be liable to indemnify the
insured in case of any liability not because of the provisions of sub-section (1) of section 147 but because of
the terms and conditions of contract of insurance between the insurer and the insured. Therefore, if the contract
of insurance provides for a liability to a passenger or to an employee other than the liabilities provided under
sub-section (1) of section 147 of the Act, the insurer would be liable to indemnify the insured against such
liability.
11. This position of law has been stated by us in our judgment in Smt. Suniiu Lokhande v. The New India
Assurance Company Limited, (supra). Paragraph 12 of our judgment in Smt. Sunita Lokhande (supra) is quoted
hereinbelow:
"12. This is not to say that the owner of the vehicle would not be entitled to any loss suffered in an accident
from the insurer. All that we have held is that a policy only satisfying the requirements of section 147 of the Act
does not cover such loss suffered by the owner of the vehicle. But sub-section (5) of section 147 of the Act
makes it clear that a policy of insurance may contain terms and conditions under which the owner can claim loss
suffered by him in the accident from the insurer notwithstanding anything contained in any law for the time
being."
12. Regarding the Division Bench judgment in Sarvanlal (supra), we find that the Division Bench has relied on
not only the judgment of the Full Bench in Jugal Kishore (supra) 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. under
section 96 of the Act and in particular sub-section (2)(xxxi) which provides that without prejudice to the
generality of the foregoing power, rules under section 96 may be made with respect to the carriage of persons
other than the driver in goods carriages. Section 96 is placed in Chapter-V of the Act which relates to „Control
of Transport Vehicles‟. Sub-section (1) of section 96 of the Act stales 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-XI 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 the
insurance policy. Thus, the decision of the Division Bench in Sarwan Lal (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 passenger does not lay
down the correct law. Since we have answered the reference, the appeal will now be listed before the
appropriate Division Bench for hearing and disposal in accordance with law.
Reference answered accordingly.
9. The contention of the counsel for the insurance company is that it is a
case of no policy, therefore, the liability is unacceptable for the simple reason
that the insurance company has issued a farmer package policy to the owner
treating him to be an agriculturist. The tractor and trolley are liable to be used
for agricultural purposes only and if the owner uses them for other than
agricultural purposes, then certainly it is a case of breach of policy. Therefore,
the insurance company has been directed to pay and recover the compensation
amount from the owner and driver. So the appeal filed by the insurance
company has no substance and is hereby dismissed.
10. MA No.2175/2008 has been filed by the claimant on the ground that
the Tribunal has committed an error in assessing the income and permanent
disability suffered by the claimant which is on the lower side. Hence prayed for
awarding just and proper amount of compensation in the case. However, owner
of the offending vehicle has filed a cross objection seeking setting aside of the
impugned award.
11. Perusal of the record it is found that it is a case of amputation from
below the knee. Considering the permanent disability certificate, evidence of
Dr.Mahesh Agrawal AW/2, Schedule-I of the Workmen's Compensation Act
according to which in a case of amputation from below the knee 50%
permanent disability should be assessed, in the considered opinion of this
Court, the Tribunal has committed an error in assessing 60% permanent
disability to the injured claimant in this case. Therefore, the permanent disability
suffered by the injured/claimant is assessed as 50% instead of 60% as assessed
by the Tribunal.
12. So far as income of the claimant is concerned, the tribunal has
assessed it as Rs.2000/- per month which is on the lower side. In the
considered opinion of this Court, considering the date of the accident, it ought
to have been assessed at the rate of Rs.3000/- per month. So the monthly
income is fixed at Rs.3000/- per month. Thus, the compensation amount is
recalculated as under:
HEAD AMOUNT
Permanent disability -Rs.4,53,600/-
(i.e. Rs.3000 40% F.P=4200 x 12=50400 x 18 (multiplier)
x 50/100 PD)
Medical expenses/pain & suffering/
attendance/transportation/loss of
convenience/special diet etc. -Rs.60,000/-
------------------------
TOTAL Rs.5,13,600/-
13. Thus, the just and proper amount of compensation in the instant
case is Rs.5,13,600/- as against the award of the Tribunal of Rs.2,42,400/-.
Accordingly, the appellant is entitled to an additional sum of Rs.2,71,200/- over
and above the amount which has been awarded by the Tribunal.
14. In the result, the appeal filed by the insurance company (MA
No.1759/2008) is dismissed whereas the appeal filed by the claimant (MA
No.2175/2008) is partly allowed by enhancing the compensation amount by a
sum of Rs.2,71,200/- and the cross objection filed by the owner is also
dismissed. The enhanced amount shall bear interest at the same rate as awarded
by the Tribunal. The other findings recorded by the Tribunal shall remain
intact.
(HIRDESH)
JUDGE
hk/
