ORDER
G. Bikshapathy, J.
1. All the appeals can be disposed of by common order. The appeals are filed by the claimants on a very limited issue as to the liability of the Insurance Company.
2. The claimants travelled in a trailer as coolies on 8.6.1993 and on account of rash and negligent driving of the tractor by its driver, it turned turtle and consequently all the occupants in the trailer received injuries and, therefore, they laid for compensation.
3. The Tribunal recorded a finding that the driver of the tractor was responsible for the accident and the accident was caused due to rash and negligent driving of the driver. The Tribunal further recorded that since the tractor was insured and trailer was not insured, the liability was fastened only on the owner of the vehicle and the Insurance Company was absolved of the liability. Aggrieved by the said Order to the extent of absolving the Insurance Company from the liability, the above appeals are filed by the claimants contending that the Insurance Company ought to have been made liable along with the owner of the tractor.
4. The learned Counsel for the claimants appellants submits that the tractor was carrying the trailer along with the employees and even though the trailer is not insured, yet inasmuch as the negligence is attributed to the driver of the tractor, which was insured by the Insurance Company, it is liable for payment of compensation as it covered third party risk.
5. The learned Counsel for the Insurance Company submits that the trailer has to be separately insured and it is an admitted case that the trailer was not insured at all. The tractor was only insured comprehensively. Therefore, the liability of the Insurance Company could not be comprehended to the occupants of the trailer. She relies on the decision of the Supreme Court reported in Nagashetty v. United India Insurance Co. Ltd. , and also judgment of this Court reported in Oriental Insurance Co. Ltd. v. Kotiratnamma 2000 (3) An.W.R. 91.
6. The issue that arises for consideration is whether the trailer should be separately insured for the purpose of claiming compensation in respect of the accident caused by the driver of a tractor.
7. The facts of the case, are not much in dispute. The tractor was comprehensively insured. The trailer was not separately insured. Occupants in the trailer received injuries and the claim was allowed only fastening the liability of the owner of the tractor. For this purpose, the definitions contained in Motor Vehicles Act, are necessarily to be referred.
8. Before considering the decisions relied on by the learned Counsel for the parties, it is necessary to refer to the relevant provisions in the Motor Vehicles Act for proper appreciation of the matter.
9. Under Section 2(28) of the Motor Vehicles Act, ‘motor vehicle’ or ‘vehicle’ is defined as follows:
(28) ‘motor vehicle’ or ‘vehicle’ means any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimetres].
10. Section 2(44) of the Motor Vehicles Act defines ‘tractor’ thus:
(44) ‘tractor’ means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;
‘Trailer’ is defined in Section 2(46) as follows:
(46) ‘trailer’ means any vehicle, other than a semi-trailer and a sidecar, drawn or intended to be drawn by a motor vehicle.
11. Semi-trailer vehicle is defined in Section 2(39) as follows:
(39) ‘semi-trailer’ means a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is super imposed on, and a part of whose weight is borne by that motor vehicle.
12. Expression ‘goods carriage’ is defined in Section 2(14) as goods carriage means:
(14) ‘goods carriage’ means 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.
13. A reading of the above provisions would clearly indicate that the distinction has been made between the motor vehicle and vehicle. However, the Division Bench of Gujarat High Court in Parsottambhai Kanbhai v. Panchiben @ Ratanben 1997 ACJ 441, made an observation with reference to the definition of the word motor vehicle as appearing in Section 2(18) of 1939 Act as follows:
As the trailer is included in the expression motor vehicle, it was required to be insured.
14. But, in 1988 Act, motor vehicle or vehicle was defined jointly. The wording remained intact.
15. But the word “trailer” was separately defined apart from the inclusive definition which was made. In such an event, the meaning assigned to the respective words has to be culled out. As can be seen from various definitions like articulated vehicles, contract carriage, goods carriage, heavy goods vehicle, heavy passenger, motor vehicle, invalid carriage, maxi cab, motor cab, motor car, motor cycle, omnibus, private service vehicles, they were defined as motor vehicles including tractor, but the trailer was defined as motor vehicle, which was intended to be drawn by a motor vehicle. Thus, it is evident that it is not a mechanically propelled vehicle neither power of propulsion is transmitted from external or internal sources. Therefore, even though, Section 2(28) embraces trailer within the definition of ‘motor vehicle’ or ‘vehicle’, but further distinction has to be drawn between the vehicle and motor vehicle and that distinction has to be carved out on the basis of the specific definition given to the word trailer. Therefore, while all the motor vehicles may fall within the definition of vehicles, but all the vehicles are not motor vehicles. The trailer as such is an attachment made to the prime mover either a tractor or a mechanically contrivance and it has no independent propulsion. The trailer always is ‘a detachable container, which does not have any independent driving system. Its movements are dependent on the prime mover, such as tractor, motor vehicle, etc.
16. The definition of “semi-trailer” supplies some more input to distinguish the word “trailer” which means a vehicle which is inseparable and interconnected attachment to the vehicle and a portion of it is superimposed and whose body weight is borne out by the motor vehicle like tippers which fall within the category.
17. The question that requires to be considered is whether the trailer is required to be insured under the provisions of the Motor Vehicles Act?
18. There is no dispute that it is a vehicle and that it is not driven by a separate driver having a licence. As already observed by this Court, it is only an attachment to motor vehicle.
19. Justice Ramaswamy (as he then was) in the New India Assurance Co. Limited, Mahabubnagar v. Anasurya 1990 (2) ALT 667, held that a tractor tied with a trailer would mean a motor vehicle constructed for the purpose of carriage of goods and, therefore, it was a goods vehicle. He reached the said conclusion taking into consideration the ratio laid down in Public Prosecutor v. Yellagadda Ramakrishna Rao AIR 1965 A.R 79, where the definitions of motor vehicle and the goods vehicle, were considered by the Division Bench and Division Bench held that the tractor-cum-trailer is a goods vehicle within the meaning of Section 2(8) of the Act. Therefore, he held that the tractor-cum-trailer, which falls within the definition of goods vehicle is insured for the purpose of agricultural operations carrying the pulse for loading or unloading is an incidental for the purpose of agricultural operation and, therefore, when the accident took place in the process, the owner as well as the insurer are liable for the compensation.
20. The Division Bench of Karnataka High Court in Oriental Insurance Co. Limited v. Hanumantappa , held that the tractor-trailer is a goods vehicle and the liability is limited to the 6 employees and the said liability is limited to the amount payable under the provisions of the Workmen’s Compensation Act, unless the owner has taken the coverage by paying extra premium.
21. The learned Single Judge of Karnataka High Court in Oriental Insurance Co. Limited v. N. Chandrasekhara , held that when tractor was insured and trailer was not insured and in case of an accident on account of the rash and negligent driving of the tractor by its driver, owner of the tractor and its insurer are not liable for payment of compensation. The same view was expressed by the learned Single Judge of this Court in Oriental Insurance Co. Limited, Karimnagar v. J. Kotiratnamma (supra).
22. In Nagashetty v. United India Insurance Co. Ltd. (supra), the issue before the Supreme Court was whether the driver having a valid licence to drive the tractor is required to possess the driving licence for driving a goods vehicle, but whether the insurance is necessary for the trailer was not under consideration. Admittedly, both the tractor and trailer were insured in that case.
23. But the moot question that arises for consideration is whether the trailer is required to be insured?
24. For this purpose, it is necessary to refer to the provisions contained in Chapter XI of Motor Vehicles Act. Section 146 read thus:
146. Necessity for insurance against third party risk:
(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter:
Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).
Explanation.–A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.
(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of Sub-section (1) any vehicle owned by any of the following authorities, namely:
(a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise;
(b) any local authority;
(c) any State transport undertaking:
Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority hi accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties.
Explanation-For the purposes of this sub-section, ‘appropriate Government’ means the Central Government or State Government, as the case may be, and,
(i) in relation to any Corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government;
(ii) in relation to any Corporation or company owned by the Central Government and one or more State Governments, means the Central Government;
(iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority.
(emphasis supplied)
25. As per the aforesaid provision, no person is permitted to use the motor vehicle in a public place, unless there is a valid insurance in relation to the use of that vehicle complying with the requirements of Chapter X. Therefore, the requirement is for obtaining policy of insurance in respect of the motor vehicle in relation to its use. This is further amplified in Section 147, where the requirement of policies and requirements of liability of the policy are contained, which is extracted to the extent necessary, thus:
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 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;
(ii) against the death or bodily injury to any passenger of a public service vehicle caused by, or arising out of the use of the vehicle in a public place:
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 a 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.
Explanation–For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) to (5) xxxxxxx xxxx xxxxxx
26. The word “vehicle” mentioned in Section 147 is co-relatable to the word motor vehicles, which is stipulated in Section 146. Therefore, the expression vehicle wherever appearing in Chapter X has to be only read as motor vehicle. The principle of claim for compensation in accidents arising out of the use of the motor vehicle is based on tortious liability and the negligence of the driver of the motor vehicle is a sine quo non for maintaining a claim under the provisions of the Act. Inasmuch as the trailer by itself cannot be driven and it has to be carried or towed with a motor vehicle namely a tractor or a like self-propelled vehicles. Therefore, the question of driving the trailer in a rash and negligent manner would not arise. It is only the prime mover or the motor vehicle which controls movement of the tractor and in case of the negligence driving of the trailer or the motor vehicle, the owner of the vehicle and its insurer alone will be made liable for payment of compensation. But, since the trailer is attached can it be said that trailer should also be independently insured so as to avoid the liability of compensation in case of rash and negligent driving by the driver. That contingency would not arise, as it is only a vehicle and not a motor vehicle. It may be for tax purposes, it is treated as a goods vehicle. But, under the provisions of the Motor Vehicles Act, no separate insurance is contemplated. When the trailer is attached to the tractor it becomes a tractor-trailer. There is no provision requiring the trailer to be separately insured to cover the third party risk. The reasons are obvious that it cannot be driven by the driver as in the case of motor vehicles or tractors. Thus, a separate distinction has been drawn between the motor vehicle and a vehicle i.e., visible in all the definitions and more especially in Chapter-XL The same situation also persists in Chapter-X in case of no fault liability wherein it has been stated that whether a death or a permanent disability of any person has been resulted from an accident arising out of the use of a motor vehicle or motor vehicles and there is no reference to vehicle as such. This aspect was never considered in any of the decisions relied on by the learned Standing Counsel for the Insurance Company and also for other side.
27. The issue can also be judged from another angle. Suppose, if an accident takes place on account of the rash and negligent driving of the tractor and the accident is caused by the tractor itself, in such an event, the insurer of the tractor and its owner would be liable. If the victim is hit by the trailer on account of the rash and negligent driving of the driver of the tractor, can it be said that the owner of the trailer will be liable for the compensation. But for the negligence driving of the prime mover or the tractor or motor vehicle, the accident could not have occurred. Therefore, whether the trailer is insured or not, the liability of the owner of the motor vehicle prime mover of the tractor will be alone responsible for causing the accident and liable for compensation. If the trailer is insured, it cannot be construed as insurance of a motor vehicle making the owner of the trailer liable for compensation under the principle of tortuous liability. The Insurance cover was made to claim damages to the vehicle and other connected unforeseen incidents, but if simply the trailer is not insured, it cannot be said that the owner of the tractor and its insurer aire not liable on the ground that the trailer was not insured.
28. Under these circumstances, the decisions relied on by the learned Standing Counsel for the Insurance Company do not, assist her in any manner. Thus, it is held that the insurance of trailer is not a mandatory requirement under the provisions of Section 146 of Motor Vehicles Act and if the prime mover/motor vehicle/tractor is insured and the negligence of the driver of the said motor vehicle is established, the compensation is payable by the owner of the tractor and insurer irrespective of the fact whether the victim suffers injury with the tractor or with the trailer. However, the Tribunal without “considering this aspect, absolved the insurance of the liability even though the tractor is admittedly the tractor was insured with the 4th respondent-Insurance Company. Thus, I hold that the Order of the Tribunal relieving the insurance from the liability is not sustainable in law and accordingly, the C.M.As. are allowed making the respondent-Insurance Company also liable along with the owner of the tractor and trailer.
29. Accordingly, the C.M.As. are allowed to the extent indicated above. No costs.