New India Assurance Co Ltd. vs Palani and M. Samundeeswari

S. Palanivelu, J.—In the claim petition, it is stated that on 06.03.1999 at about 08.00 p.m., while the minor claimant was going as a coolie

under the second respondent in a tractor belonging to him, which unloaded the sugarcane load in the Sugar mills, on return along Chittamur-

Cheiyar road, near land belonging to one Thirumal, the claimant sustained giddiness and fell down from the tractor, but the tractor driver did not

notice it and hastily drove the vehicle, and hence wheel of the tractor ran over the claimant, causing injuries and he was immediately admitted to

Chennai Government General Hospital. In the accident, he sustained injuries on his stomach, kidney and left leg. The accident took place due to

the rash and negligent driving of the tractor driver. The claimant was aged 15 years, studying in the school. He was doing part time coolie work

under the second respondent. He was earning a sum of Rs. 900/- per month. Hence a sum of Rs. 2,00,000/- is prayed for as compensation.

In the counter filed by the appellant, it is stated that it is not correct to state that the claimant travelled in the tractor and it is also denied that

there was negligence on the part of the tractor driver. There is no explanation for delay in lodging the FIR. It is not correct to say that he was

earning a sum of Rs. 900/- per month. The tractor driver should not have allowed the claimant to sit on the back of his seat. In fact, there is no

space available in the tractor for a person to be seated. While the tractor was going through the agricultural fields, due to jerking, he fell down and

accident took place. Nobody else, in vehicle which carries goods, is allowed to sit with the driver. Hence, this appellant is not liable to pay the

compensation. The tractor driver did not possess valid license. RC book and permit are not proper. Hence, the petition has to be dismissed.

The learned Tribunal Judge, after considering the evidence on record reached a conclusion that the tractor driver was negligent at the time of

accident and directed the insurance company to pay the compensation. Hence, the appellant is before this Court.

The learned Counsel for the appellant Mr. J. Chandran would strenuously contend that travelling of a person other than a driver in the tractor is

not allowed, that such travelling is violation of policy condition and if anything happens to such person, the owner has to be held liable. It is his

further contention that the quantum of compensation is on the higher side.

It is in evidence that the claimant was travelling as a coolie in the tractor which was utilized for transporting the sugarcane to the sugar mills in the

second respondent''s tractor. On return, after unloading, the accident took place. So, it has to be seen whether the Insurance Company is liable.

The learned Counsel for the first respondent/claimant Mr. A.N. Viswanatha Rao would submit that even if a person who was sitting on the

mudguard of the tractor fell down and sustained injuries, the Insurance Company has to be held liable, if it is shown that the claimant was travelling

by the tractor as a coolie for the purpose which is connected to the agricultural operations of the owner and that in this case, the injured was seated

in the tractor to load and unload the sugarcane in the second respondent''s tractor, which is a part of agricultural operation of the second

respondent and that the policy would cover him also.

He also draws attention of this Court to my decision reported in 2009 (2) Law weekly page 953, wherein I have followed the decision of the

Supreme Court and anchored the responsibility of paying the compensation upon the Insurance Company in a case where the deceased was

travelling in the tractor, which was loaded with stones belonging to the owner of the tractor. The stones were transported for construction of the

well in agricultural lands of the vehicle owner and the deceased was employed by the owner to load and unload the stones in the trailer of the

tractor and I have observed that while the tractor and trailer were being utilized for agricultural purpose, as shown in this case and the owner or his

representative as load man travelled by the vehicle and in case if he sustains personal injuries or otherwise, then the insurance company is liable to

pay compensation. The operative portion of the Judgment goes thus;-

Following the principles laid down by the Supreme Court in this regard and also considering the view taken by the other High Courts, this

Court is of the considered opinion that while a tractor and trailer were bein utilised for agricultural purposes as shown in this case and if the owner

or his representative as load-man, travelled by the vehicle and in case he got personal injury or otherwise, then the Insurance Company is liable to

pay compensation. It is held as such.

He also garnered support from a decision of Division Bench of High Court of Punjab and Hariyana and reported in The Oriental Insurance

Company Ltd. Vs. Vijay Singh and Others, in which a decision of Supreme Court in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , in

which it is held that the tractor and trailer in question were used for agricultural purpose and the claimant was travelling with fodder and the

Insurance Policy would cover the risk to the third party, as also the owner of the goods. In the Punjab and Hariyana High Court case, a decision of

Madhya Pradesh High Court has also been referred which is Malkibai and Others Vs. Badriprasad and Others, , wherein it is held that the

deceased Narsingh had gone in the tractor for putting the load of maize-straw on the trolley and that his presence in the trolley was for loading and

unloading the maize-straw and, therefore, it would be further deemed that Narsingh was working for agricultural purposes.

Bearing in mind the decision of this Court and other High Courts and following principles laid down in the Apex Court decision, it is held that

since the deceased was travelling by the tractor, even though, he was sitting in the mudguard, for the personal injuries received by him, the

Insurance Company has to be held liable. To support this view of this Court, takes aid of the oral account of the R.W.1 also who is a Junior

Assistant in Insurance Company who says in his cross-examination that the policy issued for the first respondent is a package policy, that if the

trailer is attached to the tractor, the policy will cover coolie also and if any coolie travels in the tractor sustains injuries, then the policy would cover

them also. Hence, the irresistible conclusion would be that the Insurance Company has to be held liable to pay the compensation to the claimant.

As regards the quantum of compensation fixed by the tribunal, there are no distinctive heads for the compensation. The compensation claimed

is Rs. 2,00,000/-. It is in evidence that the claimant had sustained injuries in his Urinogential system. From the evidence it is seen that the claimant

had been taking treatment from the hospitals as inpatient for a considerable period, of course intermitently and he has sustained fracture also in his

right side pelvis bone, by means of which urinary bladder got crushed. He could not pass urine in a normal way and a tube was attached to his

abdomen to pass urine in an artificial manner. It is also in evidence that he has to undergo the process of passing of urine once in three months. The

Doctor PW.2 has assessed disability at 40%. The claimant was teen age boy at the time of accident and naturally this infirmity will cause hindrance

to his future marital life also.

In these considered opinion of this Court, a sum of Rs. 2,000/- may be awarded for each percentage of permanent disability. The following is

the calculation for compensation made by this Court.

Permanent disability ==> Rs. 80,000/-

Pain and Sufferings ==> Rs. 30,000/-

Extra Nourishment ==> Rs. 10,000/-

Transport Expenses ==> Rs. 10,000/-

Expenditure for attending persons ==> Rs. 20,000/-

Loss of amenities in life ==> Rs. 50,000/-

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Total ==> Rs. 2,00,000/-

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The award passed by the tribunal is confirmed.

In fine, Civil Miscellaneous Appeal is dismissed. No costs.