BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/02/2011 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.71 of 2009 and M.P.(MD)No.1 of 2009 The Branch Manager, The Oriental Insurance Co. Ltd., Pudukottai. ... Appellant/2nd Respondent Vs. 1.Chitra 2.Ilavarasi 3.Elamaran [R2 & R3are declared as major & R1 discharged from guardianship vide order dated 2.2.11 made in MP No.1 of 2010 in CMA No.7/2009] 4.Chellammal 5.Chandran ... R1 to 5/P1 to 5 6.A.K.S.Ahammed Ibrahim ... 6th respondent/R1 Civil Miscellaneous Appeal is filed under Section 173 of the the Motor Vehicles Act, 1988, to set aside the decree and judgment, dated 21.12.2005 and made in MCOP No.877 of 2003, on the file of the Motor Accidents Claims Tribunal (Additional District Judge), FTC, Pudukottai. !For Appellant ... Mr.K.Bhaskaran ^For R1 to R5 ... Mr.N.Balakrishnan :JUDGMENT
Challenge in respect of the liability of the Appellant Insurance Company
is made in this appeal to the award of Rs.3,08,000/-, dated 21.12.2005 and made
in MCOP No.877 of 2003, on the file of the Motor Accidents Claims Tribunal,
(Additional District Judge)(FTC), Pudukottai.
2.The facts which giving rise to this appeal may be summarized as under:-
That on 22.05.2002 at about 2.45 p.m., the tractor bearing registration
No.TN-55/D-3764 belonging to the 6th respondent herein was proceeding towards
Ammapatinam on Sethu Road. When it was nearing Raghumath Nagar, the deceased
Subburamu @ Subburaman had alighted from the tractor and was standing in front
of SYN building. While so, the driver, who was on the steering wheel had
suddenly moved the tractor in a rash and negligent manner and hit against the
deceased Subburamu @ Subburaman, which resulted his instantaneously death on the
spot. The deceased was working in AKS farm as agricultural coolie. On account of
his death, the Claimants who are the wife, children, mother and the brother of
the deceased had filed a claim petition in MCOP No.877 of 2003, on the file of
the Motor Accidents Claims Tribunal, (Additional District Judge)(FTC),
Pudukottai, claiming a sum of Rs.10 lakhs towards the compensation.
3.The owner of the vehicle, who is the first respondent, in the claim
petition had not chosen to contest the claim as he remained ex-parte.
4.On the other hand, the Appellant Insurance Company being the 2nd
respondent, had alone contested the claim petition on the ground that since the
deceased was travelling in the tractor bearing registration No.TN-55-D-3764 and
he himself had invited the accident, while he was alighting from the moving
vehicle, the Insurance Company not at all liable to pay the compensation.
5.Including the first Claimant, two witnesses were examined on behalf of
the Claimants and during the course of their examination, five documents were
marked. On the other hand, two witnesses were examined on behalf of the
Appellant Insurance Company.
6.On appreciation of the materials available on record, the Motor
Accidents Claims Tribunal had rejected the contention of the Appellant Insurance
Company and proceeded to pass an award of Rs.3,08,000/- directing the Appellant
Insurance Company as well as the owner of the vehicle to pay this amount to the
Claimants with interest @ 7.5% per annum. Challenging the award, after
questioning the liability, the Insurance Company stands before this Court with
this appeal.
7.Heard both sides.
8.Mr.J.S.Murali, the learned counsel appearing for the Appellant Insurance
Company, has adverted to that:-
(1) The sitting capacity of the tractor is only one and the tractor
bearing registration No.TN-55-D-3764 and the trailer bearing registration No.TN-
55-D-3765 were covered with Kissan Packages Policy at the time of occurrence and
that the passengers are not permitted to travel either in the tractor or in the
trailer. Since the deceased was travelling in the tractor sitting on the mud-
guard, when the occurrence was taken place, the Appellant Insurance Company
could not be made liable to pay the compensation to the Claimants.
(2)He has also contended that since the driver of the tractor had
committed wrong, the owner of the vehicle, who is the 6th respondent and the
Appellant is jointly liable to pay the compensation to the Claimants for the
wrong committed by the driver of the tractor, but the Insurance Company cannot
be directed to indemnify the 6th respondent.
(3)He has also maintained that at the time of accident, the tractor was
not fitted with the trailer.
(4)He has also contended that the FIR, Ex.A1, would go to show that a case
in Crime No.90 of 2002 was registered on the file of the Manamelkudi Police
Station under section 304-A based on the complaint alleged to have been lodged
by one Subramanian, S/o.Chellaiya Konar.
(5)The FIR Ex.A1, is the earliest document, which discloses the nature of
occurrence as well as the details of the vehicle. It reveals that on 22.05.2002,
the Complainant, Subramanian, the deceased Subburamu @ Subburaman and
Kulandaivelu were working in AKS farm as coolie workers and that they had been
to Manamelgudi at 2.45 pm. When they were proceeding in front of SYN building at
Ragumath Nagar, the deceased Subburamu @ Subburaman had asked the driver to stop
the tractor and was also trying to alight from the tractor. Before the deceased
could alight from the tractor, the driver had suddenly moved the tractor. While
so, the deceased had lost his balance and hit against the back wheel of the
tractor and fallen down. When the Complainant Subramanian and other inmates of
the tractor including the driver one Kulandaivelu had lifted the deceased, the
blood was dripping from his ear and nose. On seeing this, Kulandaivelu and the
driver of the tractor had started running from the place of occurrence. It also
reveals that the deceased Subburamu @ Subburaman had succumbed to injury
instantaneously on the spot.
9.In this connection, the learned counsel appearing for the Appellant
Insurance Company would submit that FIR, Ex.A1, itself would substantiate the
fact that while getting down from the tractor, the deceased caught in the back
wheel and succumbed to injury. When such being the case, the Appellant Insurance
Company cannot be mulcted with the liability of indemnifying the owner of the
vehicle and on the other hand, the 6th respondent, who is the owner of the
vehicle alone is liable to pay the amount.
10.In order to substantiate his arguments, he has placed reliance upon the
following decisions:-
01.Sita Devi & Ors. vs.Dharambir & Ors, reported in III (2007)ACC 692.
02.Branch Manger, National Insurance Company Ltd., vs. Ganapathi & Ors,
reported in AIR 2007(NOC)246 (MAD) 2006.
03.Oriental Insurance Co. Ltd., vs. D.Laxman & Ors. reported in
2007(2)ABR(NOC)310(KAR): 2007(1) AIR Kar R 159: 2007 A I H C 501.
04.Oriental Insurance Co. Ltd., vs. Brij Mohan & others, reported in IV
(2007) ACC 254(SC).
05.Bhav Singh vs. Savirani & others, reported AIR 2008 Madhya Pradesh 1
Full Bench.
06.National Insurance Company Ltd. vs. Durga Prasad & Others, reported AIR
2008(NOC) 1437(MP).
07.National Insurance Co. Ltd.,Thanjavur Vs. Pavunammal reported in AIR
2009(NOC) 616 (MAD).
08.IFFCO-TOKIO General Insurance Co. Ltd., vs. Sulochana & Others,
reported in IV 2009 ACC 200.
09.United India Insurance Co. Ltd., vs. Smt.Anguri Devi and others
reported in 2010(1) TAC 136 (MP).
11.In Sita Devi and others vs. Dharambir & others, reported in III (2007)
ACC 692, it is held that:-
“13.A tractor is not a goods vehicle. Section 2(44) defines ‘tractor’ as
under:
“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.”
14.It is, thus, clear that a tractor is not meant to carry any passenger
or to carry any load. A trailer has been defined in Section 2(46) as under:-
‘Trailer’ means any vehicle, other than a semi-trailer and a side-car,
drawn or intended to be drawn by a motor vehicle.”
12.In Branch Manager, National Insurance Company vs. Ganapathy & others,
reported in AIR 2007(NOC)246(MAD): 2006 A I H C 3578, the deceased had fallen
from the tractor and lost his life. The plea of the claimants that the deceased
was travelling as cleaner. The learned single Judge of this Court, has observed
that the plea that the deceased was travelling as a cleaner was not
substantiated by producing valid documentary evidence. Ultimately, the learned
single Judge of this Court held that it could be said that the deceased was
travelling as gratuitous passenger and hence, the award of the Tribunal
fastening the liability on Insurance Company to indemnify the owner for the
death of deceased is liable to be set aside and therefore, the owner of the
tractor held liable to pay the compensation.
13.In Oriental Insurance Co. Ltd., vs. Brij Mohan & others, reported in IV
(2007) ACC 254(SC), it was held that the Offending tractor insured for
agricultural purpose, however trolley attached to tractor not insured. The
Labourer engaged for digging earth to be carried on the tractor-trolley attached
to the tractor. The trailer attached with the tractor was not insured. Since the
earth carried on the trolley was for the purpose of manufacturing of brick-kiln,
it was found that the tractor and the trolley were not used for agricultural
purpose. In this circumstance, the Apex Court has held that the Insurance
Company is not liable to pay the compensation. However, considering the nature
of injury and the poverty of the injured, exercising its extraordinary
jurisdiction under Article 142 of the Constitution of India, the Apex Court has
directed the Insurance Company to satisfy the award and realize the same from
the owner of the tractor and the trolley.
14.In National Insurance Co. Ltd., vs. Durga Prasad & others, reported in
AIR 2008(NOC)1437(M.P): 2008(4) ABR (NOC) 694 (M.P), also the liability of the
insurer was questioned. The deceased was travelling sitting on bonnet of tractor
from where he had fallen down and died. The tractor was insured covering the
risk of driver, owner and third party. Passenger or labourer travelling in such
vehicle could not be treated as third party for the purpose of insurance unless
their risk is covered under policy by receiving additional premium in this
regard. According to such policy, neither additional premium for any passenger
or labourer was paid nor the same was received by insurer. In this
circumstance, it was held that the liability of the passenger cannot be saddled
with the insurer.
15.In National Insurance Co. Ltd., Thanjavur vs. Pavunammal, reported in
AIR 2009(NOC) 616 (MAD) also it is held that the insurer not liable to pay
compensation for the tortious act committed by the owner of the vehicle.
16.In an another decision in United India Insurance Co. Ltd., vs.
Smt.Anguri Devi and others, reported in 2010(1) T.A.C 136(M.P), the deceased was
travelling in a tractor which turned turtle. The tractor was insured for
agricultural purpose. It is also the case of the claimants that the deceased was
died due to rashness and negligent driving of the tractor driver, but the
Tribunal has awarded a sum of Rs.3,60,000/- after fixing the liability on the
driver, owner and insurer. It was held that admittedly the tractor was insured
for agricultural purpose and not for carrying passenger. Under this
circumstance, it was held that the insurer is not liable to pay compensation for
the person who suffers injuries while travelling as passenger in the tractor.
17.On coming to the instant case on hand, it is established that the
deceased Subburamu @ Subburaman was travelling in the tractor. It is also
established that at the time of accident, the trailer was not attached with the
tractor. The evidence of PW2 cannot be tagged with credit worthiness because the
man, who lodged the complaint himself was travelling in the tractor. The
evidence of PW2 seems to be artificial and cooked up for the purpose of getting
compensation to the claimants from the insurance company.
18.On the basis of the materials available on record and other
circumstances, it is unambiguitively established that the deceased was
travelling in the tractor and while he was trying to get down from the tractor,
the driver had moved the vehicle at fast and hence, the deceased caught himself
in the back wheel of the tractor and lost his life for which the Insurance
Company cannot be held liable, on the other hand, the owner of the vehicle alone
is liable.
19.In th result, the appeal is allowed. The finding of the Tribunal with
regard to the liability of the Appellant Insurance Company to pay the award is
set aside. It is open for the respondents/claimants 1 to 5 to claim the award
amount from the 6th respondent, who is the owner of the tractor. Consequently,
connected Miscellaneous Petition is closed. No costs.
er
To,
The Additional District Judge,
Fast Track Court,
Pudukottai.