New India Assurance Co. Ltd. vs Lalita Devi and Another

Abhay M. Naik, J.

Facts found proved by the Claims Tribunal are that the tractor bearing registration No. MP 18-A 7678 was owned by Respondent No. 6. In the night of 9.7.1997, Omkar Singh, Respondent No. 5 took the tractor for tilling the agricultural field. He was accompanied by the deceased Ramniwas Singh. He left the tractor with the ignition key in the ignition lock. Ramniwas Singh, switched on the key and started the tractor which turned turtle resulting in death of Ramniwas Singh. The Claims Tribunal found that the tractor was duly insured with the Appellant. It fastened the liability to the extent of 50 per cent on the owner of the tractor whose driver was found negligent in leaving the tractor along with ignition key in the ignition lock. 50 per cent liability was fastened on Ramniwas, since he was not having a driving licence. Accordingly, the claim petition was allowed to the tune of Rs. 87,500, i.e., 50 per cent of the total liability and the Respondent Nos. 5 and 6 with the insurance company were found liable for compensation jointly and severally. Aggrieved by it, present appeal has been preferred.

Mr. Virendra Verma and Mr. Suyash Tripathi, learned Counsel for parties made their submissions which have been considered in the light of material on record.

It is contended by Mr. Virendra Verma, learned Counsel for the Appellant that Ramniwas was having no driving licence. It was he who drove the tractor without driving licence and further drove it with negligence due to which the accident was caused. This apart, it is contended that Ramniwas accompanied Omkar Singh, obviously as a passenger and since the tractor was not insured for passenger, no liability for compensation can be fastened on the insurance company. Reliance for this purpose has been placed on the Full Bench decision of this Court in the case of Bhav Singh Vs. Smt. Savirani and Others, ).

In the case of Bhav Singh (supra) the deceased was a passenger on the tractor whereas there was no provision for passenger. In the case in hand, though Ramniwas Singh might have accompanied Omkar Singh, but he occupied the position of driver after the tractor was left by Omkar Singh with its ignition key in the ignition lock of the tractor. Thus, the Full Bench decision relied on by the learned Counsel for the Appellant has no application in the present case. It does not deal with the case of compensation for death of driver of the tractor. It may be additionally seen that the insurance policy is on record as Exh. D2 which reveals that the premium for driver was duly paid and the risk of driver was duly covered by it. This being so, Appellant does not get any assistance from the Full Bench decision (supra).

Since the deceased drove the tractor without having the driving licence, the claimants are rightly found to be not entitled to compensation to the extent of negligence of the deceased himself. However, the Claims Tribunal has further appreciated that Omkar Singh, the driver of the insured by leaving the tractor with its ignition key in the ignition lock acted with negligence and has thus contributed in the accident to the extent of 50 per cent. Apex Court of India in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 upheld the view of Gujarat High Court which was summed up in para 3 of the said decision which is reproduced below:

(3) In the present case there is not an allegation even that insurer had at any time committed a breach of this condition. The insured has never permitted the cleaner to drive on the fatal occasion. Insured has permitted only the driver who is admittedly the licensed driver. It is driver''s negligence in leaving the vehicle with its engine running with the ignition key in the ignition lock that resulted in this accident. But for this gross negligence of the driver the cleaner would not have been able to interfere with this vehicle. Once the finding is that the driver in the course of the employment or the master''s agent in the course of that agency, he negligently left the vehicle with the cleaner, the vicarious liability would immediately be fastened to the owner of the truck. Even if vicarious liability arises because of this principle of social justice and not because the owner committed any breach of the policy condition. The owner in the present case never gave permission to this cleaner to drive and, therefore, the owner even though he had become liable by reason of his vicarious liability he could not be held guilty of the breach of the contractual condition embodied in the policy of insurance. Therefore, the insurer cannot plead any exemption on the ground that the owner had committed breach of the specified condition....

It is not a dispute in the present case that the offending tractor was insured with the Appellant and as per the insurance policy Exh. D2, premium to cover the risk of driver was paid. It is not the case of the Appellant that even the risk of the driver of the offending tractor was not covered under the policy. Ramniwas might have accompanied Respondent No. 5 as passenger, but at the time of occurrence of accident, the driver (Respondent No. 5) was not there on the tractor and position of the driver was occupied by the deceased Ramniwas Singh. Omkar Singh by that time had left the tractor with the ignition key inserted in the ignition lock itself. But for this gross negligence of Omkar Singh, deceased Ramniwas would not have been able to interfere with the tractor. It has been found as a fact that Respondent No. 5 in the course of employment or as the master''s agent in the course of that agency negligently left the vehicle with the ignition key inserted in the ignition lock itself, the vicarious liability would be fastened on the owner of the offending tractor. Considering it, the Claims Tribunal is not found to have committed any mistake in fastening the liability on the driver and owner to the extent of 50 per cent. Thus, in totality of facts and circumstances of the case, more so, looking to the beneficial object of the legislation, Claims Tribunal is not found to have committed any mistake in fastening the liability for compensation to the extent of 50 per cent on Appellant and Respondent Nos. 5 and 6 in joint and several manner. Since the tractor at the time of accident was admittedly insured with the Appellant, it cannot escape from the liability to make payment of compensation to the claimants who are entitled to 50 per cent of the compensation arising out of the accident which was caused due to negligence of the agency of the owner.

In the result, I do not find any force in the appeal and the same is hereby dismissed, however, with no costs.