In the High Court of Punjab and Haryana at Chandigarh
F.A.O. No.1928 of 2008 and other connected cases
Date of decision: December 01, 2009
New India Assurance Co. Ltd.
.. Appellant
Vs.
Bimla and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Suman Jain, Advocate for the appellant.
Mr. S.K. Verma, Advocate for the respondent No.1.
Mr. Manoj Chahal, Advocate for the respondent No.2.
None for the respondent No.3.
A.N. Jindal, J
This judgment of mine shall dispose of a bunch of 16 connected
appeals, i.e. FAO Nos. 1928 to 1932, 1934 to 1940 and 1942 to 1945 of
2008 having arisen out of the judgment dated 20.12.2007 passed by the
Motor Accident Claims Tribunal, Jind, awarding compensation as under :-
Case No. & Title Compensation
MACT Case No.170 of 2004, Bimla Devi vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.171 of 2004, Mani Ram and another vs. Raj Rs.1,68,800/-
Kumar and others
MACT Case No.51 of 2005, Bimla vs. Raj Kumar and others Rs.19,000/-
MACT Case No.17of 2005, Mohan vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.50 of 2005, Sandeep (minor through his Rs.14,000/-
natural guardian and father) vs. Raj Kumar and others
MACT Case No.14 of 2005, Seema vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.16 of 2005, Sarbati Devi vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.54 of 2005, Parmeshwari Devi vs. Raj Rs.13,800/-
Kumar and others
MACT Case No.55 of 2005, Hawa Singh vs. Raj Kumar and Rs.2,52,000/-
others
F.A.O. No.1928 of 2008 -2-
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Case No. & Title Compensation MACT Case No.53 of 2005, Miss Kavita vs. Raj Kumar and Rs.14,000/- others MACT Case No.52 of 2005, Ram Singh and others vs. Raj Rs.2,36,000/- Kumar and others MACT Case No. 32 of 2005, Kamla vs. Raj Kumar and Rs.2,09,200/- others MACT Case No.78 of 2005, Ompati vs. Raj Kumar and Rs.20,000/- others MACT Case No.13 of 2005, Parmeshwari Devi vs. Raj Rs.40,000/- Kumar and others MACT Case No.15 of 2005, Bhateri Devi vs. Raj Kumar and Rs.19,000/- others MACT Case No.79 of 2005, Nanki vs. Raj Kumar and others Rs.19,000/-
All the claimants were also awarded interest @ 7.5% per
annum from the date of filing of the claim petition till realization.
The common point raised in these appeals is that whether the
Insurance Company was liable to pay compensation for gratuitous
passengers taken by the respondent No.1-driver in claim petition (herein
referred as ‘the respondent No.1’) in a goods carrier vehicle and that the
agricultural labourers taken in a tractor could be termed as gratuitous
passengers.
Briefly stated the facts of the case leading to the accident are
that on 18.11.2004, claimants Bimla Devi, Sarbati, Sheela, Angoori, Kamla,
Bhateri, Parmeshwari, Kalawati and other agricultural labourers had gone to
the fields of Mahender Teli in village Danoda Khurd for plucking cotton
buds. They were working on daily wage basis. The transport for carrying
agricultural labourers was to be provided by the owner. After plucking
cotton buds from the fields, they were returning to village Narwana from
village Danoda Khurd by boarding Farmtrac-30 tractor trolley bearing
engine No.2017424 and Chassis No. 2017166, which was later on registered
at registration No.HR-22-8372. The respondent No.1 while driving the said
tractor trolley rashly and negligently reached some distance ahead of village
Danoda Khurd towards Narwana, then all the occupants of the tractor trolley
spotted a big truck parked on its correct side of the road and a tyre was also
placed on the road for communicating about its going out of order. The
respondent No.1 did not notice the said tyre and consequently struck
F.A.O. No.1928 of 2008 -3-
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against the tyre, resultantly the trolley turned turtle, all the agricultural
labourers travelling in the trolley suffered multiple injuries. Out of the said
injured, three ladies namely Sheela, Kalawati and Angoori had died,
whereas, the others were treated for the injuries. The FIR regarding the
aforesaid accident was lodged against the respondent No.1. Eventually, 16
claim petitions were filed by the different claimants either for the death or
the injuries suffered by the injured respectively.
All the claim petitions were contested. In their joint written
statement, the respondents No.1 and 2 blatantly denied the accident and
stated that they have been falsely involved in the case. The respondent
No.3-Insurance Company in its separate reply asserted that the accident had
taken place due to the rash and negligent driving of the driver of the Tralla
who had parked the same on the road and had placed a tyre in the middle of
the road. Besides, some preliminary objections were also taken.
The Insurance Company also took the plea that the driver of the
offending truck was not holding a valid driving licence and that the
petitions were result of collusion with the claimants and the respondents
No.1 and 2.
All the 16 claim petitions were consolidated vide order dated
8.3.2006 passed by the Tribunal and the evidence was recorded in claim
petition No.170 of 2004 (Bimla Devi vs. Raj Kumar and others).
From the pleadings of the parties, the following issues were
framed :-
1. Whether Smt. Kalawati, Smt. Sheela and Smt. Angoori
died and petitioners Smt. Bimla, Smt. Parmeshwari Devi,
Smt. Seema, Smt. Sarbati Devi, Mohan, Smt. Kamla,
Smt. Bhateri Devi, Sandeep, Smt. Bimla wife of Ram
Sarup, Smt. Kavita, Smt. Parmeshwari Devi wife of
Banwari Lal, Smt. Ompati and Smt. Nanki Devi suffered
injuries in an accident which took place on 18.11.2004 in
the area of village Banoda Khurd (District Jind) due to
rash and negligent driving of tractor bearing Engine
No.2417424, Chassis No.2017166 by respondent
No.1?OPP
F.A.O. No.1928 of 2008 -4-***
2. Whether the driver of the tractor (respondent No.1) did
not hold a valid driving licence and if so, to what effect?
OPR-33. Whether the petitioners are entitled to award of
compensation and if so, how much and from whom?OPP4. Relief.
In order to prove the claim petitions, in addition to examining
injured Kamla (PW1), Sarbati (PW4), Parmeshwari (PW5), Kavita (PW7),
Parmeshwari wife of Banwari Lal (PW8), Bimla wife of Ram Sarup (PW9),
Bhateri Devi (PW11), Nanki (PW12), Seema (PW13), Ompati (PW14) and
Mohan (PW15), the claimants have also examined Mani Ram (PW2), Hawa
Singh (PW6), Ram Singh (PW10), Ram Singh (PW16), Dr. Virender
Baswana (P:W17), Dr. R.K. Sharma (PW18) and ASI Rajender Singh
(PW19).To the contrary, respondents no.1 and 2 examined Baljit Singh
Additional Ahlmad (RW1) and Raj Kumar (RW2). The respondent No.3-
Insurance Company examined Clerk from Licensing Authority Hisar
(RW3), Daljit Singh (RW4) Clerk R.T.A. Office Hisar and R.P. Khanna
Branch Manager (RW5).On appreciation of evidence on record, the respondent No.1
was held to be holding a valid driving licence. The Tribunal while
observing that the accident had taken place due to the negligence on the part
of the driver of the tractor trolley decided issue No.1 against the
respondents. Ultimately, all the claim petitions were partly accepted in
terms as referred to above.While developing the argument that the tractor trolley could be
said to be a goods carrier vehicle insured for the sole purpose of agriculture
and was not meant to carry the passengers, as such, the same could not be
insured for carrying any passengers, therefore, the act of the respondent
No.1 being in contravention of the terms of the policy, the appellant was not
liable to pay any compensation for the persons who had died or received
injuries while travelling in the goods vehicle. In order to support this
contention, the learned counsel has taken me through the judgment
delivered by the Apex Court in case New India Assurance Co. Ltd. vs.
F.A.O. No.1928 of 2008 -5-***
Vedwati and others, 2007 (2) PLR 72, wherein it was observed as under :-
“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 Act 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
therefore.”Eventually, the Apex Court accepted the appeal and exonerated
the Insurance Company from the liability. The facts in the background of
the case, as involved in Vedwati’s case (supra) were that the deceased when
was returning from his village Gokhita from Atarra in tractor bearing
registration No. MP-16A-2637, after delivering certain goods there. The
tractor over turned as a result of which the deceased died. The Tribunal in
the circumstances had held that there was a violation of the terms of the
policy as the tractor could only be used for agricultural work and same
F.A.O. No.1928 of 2008 -6-***
could not be used for carrying the passengers, whereas, the High Court had
upset the findings and ultimately the appeal preferred by the Insurance
Company before the Apex Court was accepted.It was urged that tractor trolley is a goods carriage vehicle and
not a transport vehicle. The same could be used only for the agricultural
purpose and not to carry the passengers including the labourer. If the tractor
is plied for other than agricultural purpose, in that event, the claimant,
injured or the deceased could be termed as gratuitous passengers and thus,
their claim is not covered under Section 147 of the Motor Vehicles Act,
1988. It was also contended that in the instant case since the tractor having
not been used for agricultural purpose and it was only for loading the
passengers in that situation there was violation of the condition of the
contract of insurance. To the contrary, while strenuously contending that
his case is of different nature, counsel for the respondents without denying
the use of the tractor trolly for carrying passengers, he has stressed that the
labourers who were taken for plucking the buds from the field, were being
brought back to their houses, these labourers involved in the accident could
in no terms be treated as passengers or much less gratuitous passengers as
they were hired to work in the fields and it was the respondent who was to
take them to the fields and bring them back. Transport of the labourers by a
tractor owner could be considered to be a part of agriculture work. The
word “agricultural purpose” should not be construed so strictly as to
exclude the workers who were wholly involved, meant for and used for
agriculture.Some merit could be found in the contentions as set up by the
respondents. The tractor is specially designed motor vehicle not constructed
to carry any load but the same could be used for the purpose of propulsion.
It is light motor vehicle; it could be used on or off the road specially for
agricultural purposes. It was observed in Nagashetty vs. United India
Insurance Co. Ltd. and others AIR 2001 Supreme Court 3356 that the
tractor with trolley may not become a transport vehicle and hence the person
who had LMV licence may not be said to be eligible to drive a tractor with
trolley. Tractor could be put into use and come into aid of farmers for use
of agricultural implement/equipments. The word “agricultural use” should
F.A.O. No.1928 of 2008 -7-***
not be construed so strictly as to exclude the workers who are being hired,
involved, meant for and used for agricultural purpose. It has been the
practice of the day that on the country side where transport vehicles are not
available and roads are not existing, the farmers who hire the labour to do
agricultural work by them to the fields for sowing, irrigating, harvesting,
plucking the buds, collecting the fruits, packing or making the bundles have
no other source to take them to their fields, they carry them in their tractor
trolleys and bring back to their houses after day’s work. In such situation,
those labourers could safely be said to be instruments of the agriculture as
such they could not be termed as gratuitous passengers so as to exclude the
liability of the Insurance Company. Our Division Bench in case United
India Insurance Company Limited vs. Surinder and others, 2004 (4)
R.C.R. (Civil) 211 while holding that the tractor includes the trailer and is
covered under the insurance policy, observed as under :-“Admittedly, the offending vehicle i.e. tractor was insured
comprehensively against a premium of Rs.2,076/- with the
appellant-Company. Now the question to be seen is whether
any agriculture instrument attached to the tractor is deemed to
be insured along with the tractor. The word “tractor” has
been defined in the Motor Vehicles Act, 1988 as under :-“The tractor means a motor vehicle which is not itself
constructed to carry any load other than (the equipments
used for the purpose) or propulsion but excludes a road
roller.”
A perusal of the definition of word ‘tractor’ shows that
tractor itself is not able to carry any load without the
equipments. Therefore, any equipment attached to the tractor
is a part of the tractor and covered under the insurance
policy.”
Labour taken to the fields also could not be treated as
passengers. Had there been any source of transportation for taking them to
the fields and bringing them back, then certainly they could be taken and
considered as passengers but where labourer meant for agriculture is taken
to the fields and is used for the agricultural purpose, then the same could
F.A.O. No.1928 of 2008 -8-
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also be treated as use for “agriculture purpose”. Thus, to carry such labour
cannot be termed as breach of condition of policy by the insured.
According to Section 147 of the Act, as amended in the year
1994, the insurance policy would cover the risk of third party as also owner
of the goods. It has been observed in case M/s National Insurance Co.
Ltd. vs. Balit Kaur and others, 2004 (1) RCR (Civil) 722 that the policy
covered the risk of third party labourer carried by the owner for the
agricultural purpose, could certainly be said to be third party and it also
cannot be said that they were not being used for agricultural purpose. It was
observed in case Malkibai and others vs. Badriprasad and others, 1996
ACJ 38 that if the tractor was being used for the agricultural purpose in
assistance even for hire of other cultivators, the insurance company cannot
be allowed to say that the same was being used not for agricultural purpose.
Thus, while examining the case from all the angles, it would be
inappropriate to hold that the respondent acted in violation of the terms of
the policy or that the tractor was used other than the agricultural purpose
and the persons carried by the driver were the gratuitous passengers.
As regards the quantum of compensation, the respondents
being the labourers hail from the poor families and on the death of the ladies
and others having suffered injuries, reasonable compensation appears to
have been awarded suggesting no interference by this Court.
Hence, all the appeals filed by the Insurance Company stand
dismissed.
December 01, 2009 (A.N. Jindal) deepak Judge Whether refer to reporter : Yes.