Madhya Pradesh High Court

Smt. Munni vs Kamlesh on 1 April, 2025

                                             1

           IN THE HIGH COURT OF MADHYA PRADESH
                                   AT GWALIOR
                                       BEFORE
             HON'BLE SHRI JUSTICE ASHISH SHROTI
                          ON THE 2nd OF APRIL, 2025
             MISCELLANEOUS APPEAL NO.872 OF 2005

                      UNITED INDIA INSURANCE CO.LTD.
                                   Versus
                          SMT. MUNNI AND OTHERS.
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Appearance:

        Shri       R.V.       Sharma-            learned      counsel         for      the
appellant/Insurance             Company.
        Shri R.P. Gupta- learned counsel for the respondents.
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                                      WITH

            MISCELLANEOUS APPEAL NO.1137 OF 2005

                        SMT. MUNNI AND OTHERS
                                      Versus
                         KAMLESH AND OTHERS
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Appearance:
        Shri R.P. Gupta- learned counsel for the appellants.
        Shri     R.V.     Sharma-        learned       counsel       for    respondent
No.3/Insurance company.
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                                         ORDER

1. By this common order, MA No.872/2005 filed by the Insurance Company and M.A. No.1137/2005 filed by the claimants are being decided as both the appeals arise out of common Award dated 25/07/2005 passed by 2nd Motor Accidents Claims Tribunal, District-

Gwalior (M.P.) in Claim Case No.19/2004.

2. The facts of the case are that on the fateful day i.e. on 01/9/2004, deceased Hakeem @ Dhola was traveling in the trolley attached with the tractor bearing Registration No.MP07-HA-7652 alongwith five others namely- Betal, Rajveer Singh, Hakim Singh, Amar Singh and Kamal Singh, all residents of Village Lakhanpura, Police Station- Billowa, District- Gwalior (M.P.).

3. It is the case of the claimants that they had gone for selling their vegetables in the aforesaid tractor and while returning back to village Lakhanpura, because of rash and negligent driving of the driver, the tractor and trolley turned turtle, due to which, Hakeem @ Dhola died. The aforesaid tractor was owned by one Naval Kishore and was driven by Kamlesh Kushwaha.

4. The claim petition under Section 166 & 140 of the Motor Vehicles Act was filed by the claimants. Claimant No.1- Smt. Munni Devi is the widow while claimant No.2 & 3 are children and claimant No.5 is the mother of the deceased. The claimant no.4 is the father of deceased. Learned Claims Tribunal after appreciating the evidence has passed the impugned award directing the payment of compensation.

5. M.A. No.872/2005 has been filed by the Insurance Company resisting the finding of the Tribunal wherein the liability has been fastened on it.

6. M.A. No.1137/2005 has been filed by the claimants seeking enhancement of compensation.

M.A. No.872 OF 2005

7. Learned counsel for the appellant/Insurance Company challenged the impugned award mainly on the ground that the vehicle in question was not involved in the incident. It is further submitted by him that tractor was insured for agricultural purposes and at the time of incident since the tractor was being used for commercial activity, Insurance

Company cannot be held liable. He further submitted that deceased- Hakeem @ Dhola was sitting on Mudguard of the tractor which is impermissible and therefore, since there is breach of terms of policy, the Insurance company is not liable to pay the compensation. He also submitted that the Insurance policy was only in respect of the tractor and trolley was not covered. He thus submitted that Insurance Company has been wrongly made liable to pay the amount of compensation.

8. Referring to the FIR lodged in respect of the accident, which is marked as Ex. P/2, learned counsel for the Insurance Company, submitted that chassis and engine number is mentioned and not registration number of the tractor. He further submitted that property seizure memo marked as Ex. P/4 mentions chassis/engine number alongwith registration number of the tractor. He, thus, submits that description of vehicle is different in the FIR then the one mentioned in property seizure memo Ex. P/4.

9. So far as this ground of the Insurance Company is concerned, it is to be noted that FIR was lodged immediately within one hour of the incident. In clause 7 of the FIR, the make of vehicle in question viz.

"Tractor Mahindra B275 D-1" without number is mentioned. In the property seizure memo, same make of vehicle alongiwth registration number of the tractor as also the chassis and the engine number is mentioned. Thus, it cannot be said that in FIR and the property seizure memo, different vehicles are mentioned. Moreso, no such plea was taken by the Insurance company in its written statement. Further, in the statements recorded on behalf of the claimants, it has come in the statement of all the witnesses that the tractor Mahindra DI having registration No.MP07-HA-7652 is the offending vehicle. Learned Claims Tribunal has appreciated the evidence in this regard and recorded the finding that the accident occurred by the offending vehicle. The finding is, thus, based upon proper appreciation of evidence and does not warrant

any interference in the instant appeal.

11. Another ground raised by the learned counsel for the Insurance Company that tractor was insured for agricultural purpose while at the time of incident it was being used for commercial purpose and, therefore, Insurance Company is not liable to pay the compensation. He relied upon the full Bench of decision of this Court in the case of Bhav Singh Vs. Smt. Savirani and others reported in 2008(1) MPLJ 72, National Insurance Company Ltd. Vs. Bakaridan reported in (2017) ACJ 2524, Iffco-Tokio General Insurance Co. Ltd. Vs. Shankarlal and others reported in (2009) ACJ 2618 and also relied upon the judgment of Karnataka High Court in the case of Gadhilingappa @ Gadhilinga and anr. Vs. K. Guleppa and ors. Passed in MFA CROB No.100001/2016 on 20/04/2021.

12. On the other hand, learned counsel for claimants submitted that deceased alongwith all the other persons have gone for selling vegetables to the market and while returning therefrom vehicle met with an accident. The purpose of going for selling agricultural produce cannot be said the commercial activities. He submits that it is not a case where the deceased had gone for selling somebody elses vegetables. He submits that vegetables being agricultural produce, the activity has to be accepted as an agricultural activity not commercial activity. He relied upon the judgment passed by the Apex Court in the case of Shivawwa and Anr. vs The Branch Manager, National India Insurance Co. Ltd. and Anr. reported in (2018) 5 SCC 762 and also the order passed by this Court in the case of Smt. Kamladevi and others Vs. Kallu @ Kalicharan and others in M.A. No.45/2009 on 21/10/2024.

13. The issue as to what would be the 'commercial purpose' has been answered by the Apex Court in the case of National Insurance Co. Ltd. Vs. Chinnamma & others reported in (2004) 8 SCC 697, wherein after considering the definition of 'goods carriage', 'tractor', 'trailer' and other

relevant provisions of the Act, the Apex Court held as under:-

"15. Furthermore, a tractor is not even a goods carriage. The expression "goods carriage" has been defined in Section 2(14) to mean "any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods"

(Emphasis supplied) whereas "tractor" has been defined in Section 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a roadroller".

"Trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a sidecar, drawn or intended to be drawn by a motor vehicle."

16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to the market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] and other decisions following the same, as the accident had taken place on 24-11-1991 i.e. much prior to coming into force of the 1994 amendment."

14. Again, in the case of Fahim Ahmad vs. United India Insurance Co. Ltd. reported (2014)14 SCC 148, the Apex Court considered the

issue and held as under:-

"5. A perusal of the records shows that, at the time of the accident, a trolley was attached with the tractor, which was carrying sand for the purpose of construction of underground tank near the farm land for irrigation purpose(s). However, merely because it was carrying sand would not mean that the tractor was being used for commercial purpose and consequently, there was a breach of the condition of policy on the part of the insured. There is nothing on record to show that the tractor was being used for commercial purpose(s) or purpose(s) other than agricultural purpose(s) i.e. for hire or reward, as contemplated under Section 149(2)(a)(i)(a) of the said Act.

6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor was any evidence led to prove the same. In our opinion, it was mandatory for Respondent 1 Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein.

7.We may also notice that this Court in National Insurance Co. Ltd. v. V. Chinnamma [(2004) 8 SCC 697 : 2005 SCC (Cri) 378 : JT (2004) 7 SC 167] held that: (SCC p. 702, para 16) "16. ... carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities."

Thus, a tractor fitted with a trailer may or may not answer the definition of "goods carriage" contained in Section 2(14) of the said Act."

15. Thus, a tractor fitted with a trolley was being used for agriculture purpose or for commercial purpose depends upon facts of individual case.

16. In the case of V. Chinnamma (supra), the deceased was a businessman and used to deal in vegetables. After he purchased the vegetables, he was transporting the same to the market for the purpose of sale. In such circumstances, it was held that the tractor-trolley was being used for commercial purposes and not for any agricultural purpose. However, in the case at hand, it is nobody's case that the deceased was carrying vegetables of someone else for hire or reward. Rather, it has come in evidence that he took his own vegetable to market for sale and while returning back, the accident took place. The appellant Company has though taken a plea in this regard, however, it failed to substantiate the same by leading cogent evidence. Therefore, in the facts and circumstances of the case, it cannot be said that the tractor was being used for commercial purposes at the time of accident.

17. The learned counsel for Insurance Company next contended that the insurance was taken by the insured only in respect of tractor and the trolley was not insured and, therefore, the deceased being traveling in trolley, the insurance company cannot be made liable to pay compensation. On the other hand, the learned counsel for claimants submitted that the trolley in itself is not a motor vehicle and/or a goods carriage. Therefore, the trolley fitted with a tractor, being used for agriculture purpose, is covered under the insurance taken for tractor.

18. This issue has been considered by Division Bench of Allahabad High Court in the case of United India Insurance Co. Ltd. vs. Smt. Suman& others reported in 2013 SCC Online All 13519 wherein it has been held as under:-

"32. In case of a dispute about the use of the trolley, for domestic purpose or for commercial purpose the onus would be upon the person/party which dis-putes that tractor-trolley combination was being used for commercial purpose at the relevant time of accident and not domestic or for agricultural purpose. In our considered opinion, the trolley is liable to be insured

if it is used for commercial purposes and not for agricultural or domestic purpose, therefore, the insurance of trolley/trailer attached to a tractor depends upon the intention and its actual use, therefore, it will not take away the liability of the Insurance Company until and unless it is proved that the trolley was being used for commercial purposes. If the tractor is not insured for commercial purposes, the trolley attached to it or any other vehicle acquires the status of the vehicle to which it is attached i.e., for domestic or agricultural purposes etc."

19. Further, before the Apex Court, in the case of Nagashetty vs. United India Insurance Co. Ltd. reported in (2001)8 SCC 56, it was argued that once a trailer was attached to the tractor, the tractor became a transport vehicle and, therefore, a driver having licence to drive a tractor only, could not have driven tractor with trolley. Dealing with this argument, the Apex Court held as under:-

"10.We are unable to accept the submissions of Mr S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under Section 10, a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr S.C. Sharda is to be accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having a valid driving licence

to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle."

20. Thus, it comes out from aforesaid discussion that the trolley in itself is not a motor vehicle and is meant to be drawn by a tractor. Thus, so long as the tractor-trolley is being used for agriculture purposes, for which the tractor is insured, separate insurance for trolley is not required.

21. The Allahabad High Court in yet another case of National Insurance Co. Ltd. vs. Wasimunnishareported in 2023 SCC Online All 4172, while dealing with similar issue, held as under:-

"11. This takes this Court to the last ground as the tractor being attached with a trolley and trolley was insured with the Insurance Company and, therefore, they are not liable. Whether attaching trolley to tractor and the trolley not insured will be sufficient to exonerate the Insurance Company, the answer is given by the apex court in State of Orissa & others Vs. Bijaya C. Tripathy AIR 2005 SC 1431and Fahim Ahmad & others Vs United India Insurance Company Ltd and others 2014 (2) T.A.C. 383 (SC) and this High Court in First Appeal From Order No. 1507 of 2003 (UPSRTC through Regional Manager Vs. Smt. Sukha Devi & Others) has held that if there is no fundamental breach of policy, the Insurance Company cannot be exonerated. In our case, tractor was used for carriage of Iron Bars and thresher, which is used for agricultural puposes is not a fundamental breach of policy under Section 147 of the Motor."

22. In the case in hand also no fundamental breach of policy is found and, therefore, the Insurance Company cannot avoid its liability to pay compensation.

23. In support of his contention, the learned counsel for appellant relied upon judgment of this court in the case of New India Assurance Co. Ltd. vs. JankiAhirwar& others reported in 2012(1) ACJ 952 (M.P.). However, the said judgment is of no help to Insurance Company inasmuch as in the said case, the claimants were going to have a darshan

of Mata Ratangarh which was not an agriculture use.

24. The other judgments relied upon by counsel for insurance company in the case of National Insurance Co. Ltd. vs. Bakaridanreported in (2017) ACJ 2524, in the case of Iffco-Tokio General Insurance Co. Ltd. vs. Shankarlal&others reported in (2009) ACJ 2618, judgment of Karnataka High Court in the case of Gadgukubgaooa @ Gadhilinga vs. K. Guleppain MFA No.102649/2015 and judgment of Chhattisgarh High Court in the case of Shriram General Insurance Co. Ltd. vs. KhominBai & Ors. reported in 2021 ACJ 1845, are also of no help to him inasmuch as in those cases the deceased were traveling on mudguard of the tractor which was found to be in violation of terms of policy. However, in the case at hand, it is nobody's case that the deceased was traveling on mudguard of tractor. The evidence is to the contrary that he was traveling in trolley.

25. In view of discussion of facts and law made hereinabove, it is held that the Tribunal has not committed any illegality in fastening the liability on appellant Company.

M.A. No.1137 OF 2005

26. Learned counsel for claimants submitted that the claims Tribunal has erred in awarding compensation based upon notional income of Rs.1,500/- whereas the income ought to have been assessed at minimum wages fixed for atleast unskilled labourer. The learned counsel further submitted that the claims Tribunal failed to award compensation towards future prospects and the amount under conventional heads is not adequately awarded.

27. Learned counsel for the Insurance Company opposes the prayer for enhancement of compensation and submits that the amount awarded by the claims Tribunal is just and proper and does not warrant interference by this Court.

28. As held by Apex Court in the case of United Indian Insurance

Company Ltd. vs. SatinderKaur reported in (2021)11 SCC 780, the income of the deceased- Hakeem @ Dhola assessed by the Tribunal appears to be on lower side. His income is thus assessed at minimum wages fixed for unskilled labourer in the year 2004 which was Rs.2,423/- per month. The deceased since was aged about 25-30 years, the claimants are also held entitled to compensation towards future prospects at the rate of 40%. There are five dependants, therefore, deduction would be 1/4 th as done by Tribunal. The claimants would also be entitled to funeral expenses of Rs.15,000/- instead of Rs.2,000/- as awarded by Tribunal. Further, they are also held entitled to consortium at the rate of Rs.15,000/- each.

29. In light of the judgment rendered by the Apex Court in the case of Satinder Kaur (supra) and also in view of aforesaid discussion, in order to arrive at just and reasonable compensation, the claimants are awarded compensation as follows:

01. Income alongwith future -2423/- + 40% = Rs.3,393/-

    prospects @ 40%                        - 3393 X 12 = Rs.40,716/-
02. Deduction     towards        personal 40,716 - 10,179 = Rs.30,537/-
                 th
    expenses (1/4 )
03. Multiplier @ 17                         30,537 X 17= Rs.5,19,129/-
04. Funeral expenses                        Rs.15,000/-
05. Consortium      @     15,000    X     5 Rs.75,000/-
    dependents
06. Total compensation                      Rs.6,09,129/-
07. Amount awarded by Tribunal              Rs.2,23,000/-
08. Enhanced        amount       of Rs.3,86,129/-
    compensation (06 - 07)

30. Thus, there will be enhancement of Rs.3,86,000/- (Rupees Three Lac Eighty Six Thousand Only), which will be admissible in favour of the claimants in addition to the amount awarded by the learned Claims Tribunal. This additional amount will also earn interest @ 6% per annum from the date of filing claim petition i.e. 11.10.2004 till the date of actual

payment. Other terms and conditions of the award shall remain intact.

31. Consequently, the appeal filed by Insurance Company (M.A. No.872/2005) is dismissed and the appeal filed by claimants (M.A. No.1137/2005) is allowed to the extent mentioned above.

(ASHISH SHROTI) JUDGE

rahul RAHUL SINGH Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0cde4

PARIHAR dee473fe77953f5, postalCode=474001, st=Madhya Pradesh, serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4AB9 D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2025.04.08 13:44:30 -07'00'