Bhagwat vs Shardabai & Ors.

Present appeal is filed under Section 173 of Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’ for purpose of brevity) by respondent no.1 in Motor Accident Claim Petition No.67 of 2010 decided by learned Member, Motor Accident Claims Tribunal, Beed, by judgment and award dated 22.02.2012. By the impugned award, learned Tribunal has directed present appellant/respondent no.1 and respondent no.5/original respondent no.2, to pay compensation to the tune of Rs.2,73,500/- along with interest @ 6 % p.a. from 26.03.2010 i.e. date of filing of claim petition till date of realization of amount to respondent nos.1 to 3, who are original petitioners in the said claim petition.

One Gorakh Sadhu Denge died in a road accident while traveling in a trolley attached to tractor owned by present appellant/respondent no.1, which was being driven at the relevant time by respondent no.5/original respondent no.2. The tractor was insured with respondent no.6/insurance company on the date of accident. Respondent Nos.1 to 4 in the present appeal filed aforesaid claim petition under Section 166 of MV Act seeking compensation on account of demise of late Gorakh, husband of respondent no.1 and father of respondent nos.2 to 4. While the claim petition was pending, respondent no.4/original claim petitioner no.4, expired and his name came to be deleted.

Hereinafter the appellant will be referred to as owner, respondent nos.1 to 3 will be referred as claimants, respondent no.5 will be referred as driver and respondent no.6 will be referred as insurance company.

On 21.10.2009, deceased Gorakh along with around 20 laborers boarded a trolley attached to the tractor for traveling from Village Mouj to a sugar factory at Akluj. The deceased was to work as sugarcane cutting labor in the sugar factory. The tractor and trolley in which the deceased was traveling turned turtle at around 12:30 p.m. as a consequence of which, deceased suffered severe injuries and succumbed to the same. Offence under the relevant provisions came to be registered against the driver of the tractor. The tractor was insured with insurance company as on the date of accident. In such circumstances, the claimants preferred aforesaid claim petition. It is their case that deceased was around 45 years of age at the time of his demise and was earning around Rs.6,000/- per month. The claimants accordingly claimed compensation from owner, driver and insurance company by filing aforesaid claim petition.

The owner and driver filed written statement vide Exhibit 20. The fact of accident was admitted. A contention was raised that the laborers were traveling in the vehicle along with their goods as owners in a goods carrying vehicle. It was contended that the liability of making payment of compensation was required to be borne by the insurance company. A contention was also raised that deceased died due to his own mistake, since he was not sitting properly in the trolley.

The insurance company denied the claim on the ground that around 20 passengers were unauthorizedly traveling in the trolley attached to the tractor and as such, the policy did not cover the accident claim of the deceased. It was also contended that the deceased was 50 years old as on the date of his demise and not 45 years old as claimed by the claimants.

Based on the rival pleadings, learned Tribunal framed issues and recorded the evidence. Learned Tribunal found that the tractor was duly insured with insurance company, however, the insurance company is exonerated of the liability on the ground that trolley was unauthorizedly used for carrying passengers and as such the claim was not covered by the policy and insurance. As regards quantum of compensation, learned Tribunal held that there was no cogent evidence to establish income of the deceased and accordingly, held his notional income at Rs.3,000/- per month. Referring to admission of claimant no.1 in her cross-examination that the deceased was 52-55 years old at the time of his demise, multiplier of 11 was applied by learned Tribunal. Learned tribunal has made 1/3rd deduction towards personal expenses of deceased and computed compensation of Rs.2,64,000/-towards loss of financial dependency. In addition, an amount of Rs.9,500/- is awarded towards conventional heads of funeral expenses, loss of estate and consortium. Accordingly, claim petition came to be decided awarding compensation of Rs.2,73,500/- with interest @ 6 % p.a. directing the owner and driver to pay the said compensation while exonerating the insurance company.

Mr. Ajit Gholap, learned advocate for the appellant vehemently argues that the deceased expired after having fallen from the tractor. He contends that once the deceased fell from the tractor, he became a third party and as such the insurance company will be liable to honor the claim, as the deceased was a third party and not a passenger traveling in the trolley attached to the tractor at the time of his demise, since he died after falling from the trolley and not while he was occupying it. In support of his contention, learned advocate has placed strong reliance on judgment of this Court in the case of Oriental Insurance Company Limited and another Vs. Edward Dcruz Rodrigues and others, 1995 (1) Mh.L.J 810 (Bombay High Court), The National Insurance Company Limited, Warangal Vs. Ellandula Yelisa and others, 2014 SCC Online Hyderabad 972, Oriental Insurance Co. Ltd Vs. Rakhaben wd/o Tinabhai alias Madhabhai Parsottambhai Chauha and Others, 2014 SCC Online Gujarat 9589, Thoznilalar Transport Company Vs. Valliammal and Others, 1989 SCC Online Madras 24. The learned advocate has also placed reliance on decision of the Hon’ble Supreme Court in Royal Sundaram Alliance Insurance Company Limited Vs. Smt. Honnamma and Others, AIR 2025 SC 2641 to contend that although trolley is not insured, the owner and insurance company of the tractor will be liable to pay compensation to dependents of a deceased who dies in a road accident while traveling in the trolley.

Per contra, Mr. Sudhir Kulkarni, learned advocate for insurance company contends that deceased was traveling in a trailer while he met with an accident. He argues that the tractor and trolley are not meant for carrying passengers. The contention is that the claim is not covered by insurance policy and that learned Tribunal has rightly exonerated insurance company from liability to make payment of compensation. Learned advocate places reliance on Bainabai w/o Sakharam Gayakwad and Others, 2009 AC 25 (Bom) (AB), National Insurance Company Limited Vs. Balakrishnan and Another, (2013) 1 SCC 731, Dhondubai Vs. Hanmantappa Bandappa Gandigude since dead through his Lrs and Others, Civil Appeal Nos.5459-5460 of 2023 decided on 28.08.2023, Chandrakant Vs. Majlasbai and Others, 2018 AC 274 (Bom) (Aur) and National Insurance Co. Ltd Vs. Laxmanna (Died) by Lrs, 2005 ACJ 1532.

Mr. Gholap, learned advocate for the appellant draws attention to the statement of informant, who is a police officer, who has stated that deceased had died on account of head injury suffered by him after falling from the tractor. Perusal of the post mortem report will also demonstrate that deceased died due to head injury. The aforesaid facts are foundation of the argument of the owner that the deceased died after having fallen from the tractor and as such he should be treated as a third party and accordingly the insurance company should be held liable to honor the claim.

Perusal of the insurance policy will demonstrate that the policy is not comprehensive policy of insurance. It is an act policy also commonly known as third-party policy. The policy is subject to Indian Motor Tariff (IMT) 36, 48 and 40. IMT 36 is for the indemnity for hirer of the vehicle. IMT 48 is for use of vehicle as vehicle for agriculture and forestry purposes. IMT 40 covers the liability of driver of vehicle. It must also be stated that the policy does not disclose payment under IMT 39, which covers the liability of persons employed on a motor vehicle for the purpose of maintenance and/or loading and unloading goods, to the extent of liability under the Employees' Compensation Act, 1923. The question of liability of the insurance company needs to be examined in the backdrop of aforesaid policy.

The Hon'ble Supreme Court has in the case of United India Insurance Company Limited Vs. Serjerao and others, (2008) 7 SCC 425, held that when laborers are traveling in trolley attached to tractor which meets with an accident, the insurance company cannot be held liable to honor the claim. The Hon'ble Supreme Court has referred to its earlier decision in the case of Oriental Insurance Co. Ltd Vs. Brij Mohan, (2007) 7 SCC 56, to arrive at the said conclusion.

In the case of National Insurance Co. Ltd Vs. Cholleti Bharatamma and Others, (2008) 1 SCC 423, the Hon'ble Supreme Court has held that the owner of goods being transported in goods vehicle may travel along with goods by sitting in the cabin of the vehicle and not along with goods loaded in the goods vehicle. It is held that the claim of owner of goods traveling in a goods vehicle will be covered under Section 147, only if he travels in the cabin of the goods vehicle. This Court has also in the case of Bainabai (supra) held that the claim of a deceased traveling in a trolley attached with tractor is not covered by Section 147 of MV Act.

Mr. Gholap, however, contends that deceased did not die as a passenger of the tractor/trolley. His contention is that after having fallen from the trolley, the deceased assumed character of a third person whose claim is statutorily covered under Section 147 and, therefore, the insurance company could not be exonerated from the liability. As noticed above, he has placed reliance on several decisions in support of his contention. It will now be appropriate to deal with the said decisions.

In the case of Edward Dcruz Rodrigues (supra), the deceased was traveling in a transport bus from Benaulim to Orlim. The bus halted at a stop for enabling the passengers to get down. The deceased wanted to get down from bus and had put one foot down on the road, whereas the other foot was on the footboard of the bus. Precisely, at this moment, bus was set in motion as a consequence of which the deceased fell down and came beneath the rear wheel of the bus. It is in this context of facts that this Court has held that deceased was not a passenger traveling in the bus, but a third party whose claim was covered under third party risk and as such, the insurance company was liable to honor the claim. This Court had held that the bus was a contract carriage. The contract of carriage had come to an end when the deceased/passenger reached the endpoint of her journey. She met with an accident when she was to alight from the bus at the endpoint. It is held that pursuant to contract of payment of hire for traveling, the bus stopped at the destination and at that time, the contract of carriage had terminated and it is observed that in furtherance of this, the deceased while alighting from vehicle met with the accident. It is in this peculiar set of facts that this Court has held that the deceased ceased to be a passenger at the time of her accident and as such, has held the insurance company liable to honor the claim as a third party claim.

In the case of Thoznilalar Transport Company (supra), also the deceased was traveling in a bus and met with the accident while alighting the bus at the end of her journey. It is in this context that the Madras High Court has held that upon termination of her journey, when the deceased was alighting from the bus and met with an accident, at that time, case should be considered as one of a third party and not of a passenger traveling in the vehicle.

The facts of the case of Edward Dcruz Rodrigues (supra) and Thoznilalar Transport Company (supra) are completely different. The deceased in the said case was traveling in a bus and met with an accident during the process of alighting from the bus at the end of the journey. In the peculiar set of facts, it is held that upon termination of journey, while the deceased was trying to get down from the vehicle, she cannot be said to be a passenger traveling in the bus and the claim will have to be honored as a third party claim.

It will now be appropriate to deal with the judgment of Hon'ble Supreme Court in the case of Smt. Honnamma (supra). In the said case like in the present appeal, the deceased was traveling in a trolley attached to the tractor while he met with the accident. The deceased fell off from the trailer resulting in his death. The issue was as to whether the insurance company of the tractor was liable to honor the claim. The Hon'ble Supreme Court has held the insurance company is liable to honor the claim of the deceased. The perusal of the judgment will demonstrate that the policy of insurance in the said case was also governed by IMT 39 and premium of Rs.30 was paid for the same. IMT 39 reads as under:

The deceased was employed as a labor for unloading of soil which was being transported in the trolley. Thus the claim of deceased was of a labor engaged for loading and unloading of goods of a transport vehicle, which is covered under IMT 39. The policy in question does not cover claim for IMT 39. In the present case as noticed above, the policy does not cover the claim of labor as per IMT 39. The deceased was also not traveling in the trolley for loading or unloading of goods in the trolley. The deceased was simply traveling as a passenger to reach the sugar factory in which he was to be employed as a labor for sugar cutting.

In the case of Elandulla Yellisa (supra), the Andhra Pradesh High Court also held that the policy in question covers claim of workmen for loading and unloading of goods for which additional premium was paid under the policy. The High Court has taken note of the judgment of the Hon'ble Supreme Court in the case of Serjerao (supra) and has held that the ratio of the said judgment was not applicable, since under the policy of insurance company, additional premium covering risk of six hamals was covered. Apart from this, the judgment holds that the moment the deceased fell down from the tractor, he was required to be treated as a third party with respect to the vehicle in which he was traveling and as such, the insurance company could not be exonerated of the liability. In the facts of the said case, the deceased employee was sitting on a heap of sand loaded in the trailer. He fell down from the trailer and died due to running over of the wheel of the trailer over his person. The death of the deceased was caused due to crush injuries suffered on his head due to running over of wheel of the vehicle after he fell down from the same.

Similarly, in the case of Rakhaben (supra) decided by Gujarat High Court, also after the deceased fell down from the trailer, the trailer ran over him and he died due to injuries suffered on account of trailer running over him.

Both these cases have a distinguishing feature that the deceased fell from the tractor and thereafter, he was run over by the trailer. The deceased died due to injuries suffered by him on account of trailer running over him after he fell from the vehicle. In the present case, deceased died due to head injury suffered on account of falling from the trailer. The wheel of tractor has not run over him after he fell. In the aforesaid two cases after the deceased fell down he was run over by the vehicle resulting in his demise. The High Courts have held that after falling down from the vehicle when the vehicle was ran over the deceased, he was not a passenger. The cause of death is running over of the vehicle after the deceased fell out of the vehicle. In other case, the deceased died of head injuries suffered on account of falling from the vehicle and not on being run over by the vehicle after fall. This is a subtle distinction between the facts of the present case and the case before the Andhra Pradesh High Court and Gujarat High Court.

Having said so, it is also difficult to accept the proposition laid down in the said case that after falling from the trailer when the deceased expired due to running over by the same trailer over his body, he should be treated as a third person. The event of accident cannot be split into parts, as learned High Courts have done. The fall of the deceased from the tractor and running over of the wheel of the trailer will constitute part and parcel of the same accident. However, even if it is accepted that the two events i.e. falling from the trailer and running over of the wheel of the trailer can be viewed as two distinct events, yet in the present case, the deceased has not died due to running over of the wheel of the trailer over his person. He simply died due to head injuries suffered on account of falling from the trailer.

The deceased was travelling in a goods vehicle for reaching a particular destination. He was not travelling as a labour for loading or unloading of goods. The policy of insurance does not cover claim of a labour as per IMT 39. Therefore, in my considered opinion, the insurance company cannot be fastened with the liability to make payment of the claim.

As regards the amount of compensation awarded, although the claimants have not filed appeal or cross objection, in view of settled legal position that the claim Tribunal as also this Court while entertaining appeal under Section 173 of MV Act filed either by the owner or insurer is bound to grant just and fair compensation to the claimants, even in the absence of a substantive appeal or cross objection filed by them, it is necessary to examine whether the compensation awarded by learned Tribunal is just and proper. The compensation awarded towards loss of financial dependency appears to be proper. Since there is no evidence on record to establish monthly wages of the deceased and notional income considered by learned Tribunal appears to be reasonable. The multiplier and deduction is also proper. Since the deceased was more than 50 years old and was only a daily wager/labour, the question of awarding compensation towards loss of future prospect of earning also does not arise. However, learned Tribunal has erred in awarding only Rs.9,500/- towards loss of consortium, loss of estate and funeral expenses.

In the considered opinion of this Court, compensation of Rs.1,60,000/- should have been granted to the claimants towards loss of consortium, Rs.40,000/- for claimant no.1 (widow), Rs.40,000 each to claimant nos.2 to 4 (three sons). Apart from this, amount of Rs.15,000/- each was required to be paid towards loss of estate and funeral expenses. Thus total compensation of Rs.1,90,000/- is payable towards conventional heads as against Rs.9,500/- awarded by learned Tribunal. The amount of compensation will therefore have to be increased by an amount of Rs.1,80,500/-.

In the light of aforesaid, the appeal is dismissed. However, the appellant/owner and respondent no.5/driver are directed to pay additional compensation of Rs.1,80,500/- to respondent nos.1, 2, 3/original petitioners over and above amount of compensation awarded by learned Member, Motor Accident Claims Tribunal, Beed by judgment and award dated 22.02.2012 passed in Motor Accident Claim Petition No.67 of 2010, without interest.

Parties should bear their own cost.

Since respondent nos.1, 2, 3 (claimants) have not filed substantive appeal or even cross-objection, this Court is not awarding interest on the enhanced amount of compensation.