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Judgment
S.S. Sodhi, J.—The challenge in appeal here is to the award of Rs. 28,980/- as compensation to the claimants, Malkiat Singh and his sons, for the damage caused to their wheat field, when the Combine Harvester of the Appellant, Punjab State Co-operative Supply and Marketing Federation Limited (hereinafter referred to as ''MARKFED'') caught fire while working in the nearby fields and this fire later spread on to the fields of the claimants. This happened on April 26, 1980.
Mr. N.K. Sodhi, counsel for the owner of the Combine Harvester, namely, MARKFED, sought in the first instance to question the jurisdiction of Tribunal in the matter. The contention being that a Combine Harvester was not a ''motor vehicle'' as defined in the Motor Vehicles Act, 1939 (hereinafter referred to as ''the Act'') and the Claims Tribunal constituted u/s 110 thereof, could not, therefore, adjudicate upon any claim for compensation arising from the use of it.
A ''motor vehicle'' as defined in Section 2(18) of the Act means:
...any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises.
A plain reading of this definition would show that a Combine Harvester is clearly covered by it, it admittedly being a mechanically propelled vehicle adapted for use upon roads too, in the sense of travelling from one place to another and what is more, it does not fall in any of the excluded categories, namely, vehicles running upon fixed rails or being adapted for use only in a factory or other enclosed premises. There is thus no occasion for upholding the point canvassed.
Next, in order to absolve MARKFED from the liability, the attempt was to press in aid the terms of the agreements, Exhs. R/l and R/2. between the claimants and the Appellants regarding the hiring and use of the Combine Harvester. The reference here being to Clause 14 thereof to the effect that if on account of the Combine Harvester or for any other cause, there is a fire, MARKFED would not, in any manner, be liable for the damage caused. These agreements are again of no avail to the Appellants. Even if it be taken that such a clause was valid and binding, it could come into effect only if, at the time the damage is caused, the Combine Harvester was operating under these agreements, on the fields of the claimants. As mentioned earlier, the Combine Harvester was working in the nearby fields when it caught fire. Evidence shows that it first caused fire to the wheat crop of Sudarshan Singh Goyal, Advocate, where it was working before this fire spread on to the fields of the claimants. The Appellants thus cannot escape liability under cover of these agreements.
The main question which arises for consideration is with regard to the liability of the insurance company for the damage caused. The Appellants have placed on record a copy of the insurance policy, Exh. R/3, which admittedly is with respect to the Combine Harvester concerned. It was the contention of the counsel for the Appellant that in terms of this policy of insurance, the entire liability for the damage caused lay upon the insurance company. Mr. B.S. Wasu, appearing for the National Insurance Co. Ltd., sought to contest this by referring to the provisions of Section 95(1)(b) (i) of the Act. The argument being that the requirement of this statutory provision was to have the insurance company cover liability in respect of damage to property arising out of the use of a motor vehicle in a public place. The emphasis being on the words ''public place''. He argued that as the damage had been caused while the Combine Harvester was working in the fields of private individuals and not in a public place, no liability could be fastened upon the insurance company. Counsel for the Appellant, to counter this, adverted to the provisions of the policy of insurance, Exh. R/3, where the whole of India was mentioned as geographical area covered by it. The point urged by him being that what Section 95(1)(b) (i) of the Act prescribes are only the minimum limits of insurance cover but not that it cannot extend beyond it. In other words, though the requirement of this provision of law is that damage occurring in public places be covered, it was open to the insurance company to also provide insurance cover for such damage occurring in private places too. He went on to contend that as the policy of insurance, Exh. R/3, mentions the whole of India as the geographical area to which it pertains, it clearly meant that this insurance cover was available to the Appellant, not only in respect of occurrence in public places but also in private places. No exception can indeed be taken to this line of reasoning.
It is well settled that Section 95 of the Act lays down the extent to which the liability must be covered by the insurance company in respect of the death or bodily injury to any person or damage to any property of a third person caused by the use of a motor vehicle in a public place. There is, however, no bar or prohibition to an insurance company taking upon itself a wider liability cover. In other words, by the terms of the policy of insurance, the insurance company can take upon itself a liability over and above the requirements of Section 95 of the Act. It must also, at the same time, be clarified and emphasised here that the insurance cover required to be provided by the insurance company in terms of this provision of law cannot be whittled down or denied by the terms of the policy of insurance. Such thus being the legal position, when the insurance policy specifically mentions the whole of India as being the geographical area covered by it, then that there can be no escape from the conclusion that the insurance company must indeed be held liable for the entire damage caused, even though this damage had occurred in the private fields of the claimants.
Faced with this situation, counsel for the insurance company sought refuge under Clause (f) of the proviso to section II (1) of the policy of insurance, Exh. R/3, which reads:
The company shall not be liable in respect of damage to property caused by sparks from the motor vehicle or caused by or arising out of the explosion of the boiler of the motor vehicle.
The contention being that in view of this provision in the insurance policy, the insurance company could not be held liable. This is indeed a contention wholly devoid of merit. In the first instance, it must be observed that no such plea had been raised either in the pleadings or before the Tribunal nor is there any evidence to suggest that the damage in this case had occurred in the manner covered by the terms of this clause. What is more important, this clause clearly seeks to whittle down the insurance cover required to be provided by the insurance company in terms of Section 95 of the Act. This being so, it cannot but be held to be invalid and contrary to law to the extent to which it seeks to avoid liability being fastened upon the insurance company as required u/s 95 of the Act.
Finally, there was a half-hearted attemp on the part of the counsel for the insurance company to seek to limit the liability of the National Insurance Company to the extent of 40 per cent keeping in view the share of the premium received by it. This is again a point sought to be raised for the first time in appeal here and cannot, therefore, be countenanced and further, this is, at any rate, not a matter that can be raised as an issue between the Appellant and the claimants.
It accordingly follows that the insurance company is liable for the entire amount awarded and the appeal filed by MARKFED is consequently accepted to this extent.
Before parting, however, we must express our strong disapproval of Clause 14 of the agreements, Exhs. R/l and R/2. It does not behove an organization like MARKFED to impose such a clause upon those who are constrained to come to it for hiring its Combine Harvesters. It must be appreciated that the crops grown by a farmer are the result of his sweat and toil and they represent for him his only source of livelihood. If fire is caused on account of negligence or otherwise by the use of or the running of the Combine Harvester, it would clearly be morally indefensible for MARKFED to seek to absolve itself from liability under cover of such a clause. This is all the more so, when, as shown in this case, there is an insurance cover taken by it which wholly covers its liability in respect of such an occurrence. Presumably, such insurance cover is there in respect of all its Combine Harvesters. It is hoped, therefore, that such clauses will not be incorporated in contracts for the hire or use of the Combine Harvesters and in existing contracts containing such a clause, it will not be relied upon to defeat the claim for compensation by the farmers whose crop is so damaged. A copy of this judgment is, therefore, directed to be sent to the Chairman and the Managing Director, MARKFED.
This appeal is accordingly hereby accepted. There will, however, be no order as to costs.