United India Insurance Company Limited vs Smt. Triveni Bai Satnami and Others

Radhe Shyam Sharma, J.—This appeal has been preferred by the United India Insurance Company Limited challenging the award dated 11-1-2007 passed by the Additional Motor Accidents Claims Tribunal, Bilaspur in Claim Case No. 95/2005. Case of respondent No. 1/claimant Smt. Triveni Bai before the Claims Tribunal was that on 25-2-2005 when respondent No. 1 along with Dukhiram, Sakun, Hari Kurmi and other children had gone in search of job (Majdoori) near Tifra Fatak Bijali Office, respondent No. 3, owner of the tractor bearing registration No. CG 10A 6508, which was insured with the appellant and driven by respondent No. 2 at that time, hired them to unload the tractor loaded with cement at Deorikhurd at the rate of 75 Paisa per bag and they were made to sit on the engine of the tractor. The tractor was being driven rashly and negligently and while giving side to one school Bus 407 respondent No. 2 turned the tractor turtle. In the accident, cement bags had fallen upon respondent No. 1 and she sustained injuries. She sustained injuries on wrist of left hand, both shoulders, both hands and also received abrasions on elbow, legs, thigh, left eye and neck. She got her left hand, palm, wrist and left leg plastered. Both the shoulders were fractured. An offence was registered against respondent No. 2 under Sections 279, 337 and 338 of the Indian Penal Code. Respondent No. 1 was earning Rs. 75/- to 80/- per day and was maintaining her children. Due to the injuries on her palm of left hand, wrist and shoulders, her efficiency was decreased. Respondent No. 1 filed an application u/s 166 of the Motor Vehicles Act, 1988 (henceforth ''the Act, 1988'') for compensation of Rs. 1,58,670/-. The Claims Tribunal awarded Rs. 38,500/- in favour of respondent No. 1 holding liability to pay the compensation upon the appellant/insurance company.

Shri H.B. Agrawal, learned Senior Advocate appearing for the appellant has argued that respondent No. 2/driver violated conditions of the policy of insurance. Only the driver can sit on the tractor to drive it and nobody can sit on the tractor. Therefore, respondent No. 1/claimant was a gratuitous passenger and no award could be passed against the appellant/insurance company and the appellant/insurance company could not have been held liable for payment of the compensation.

On the other hand, Shri Atul Pandey, learned counsel appearing for the respondents has argued that the tractor was covered under the policy of insurance; it was being used for agricultural purposes and respondent No. 3/owner never violated conditions of the policy of insurance. There was no breach of terms and conditions of the insurance policy. Learned counsel has supported the impugned award.

I have heard learned counsel appearing for the parties and perused the impugned award as also the evidence available on record.

In United India Insurance Company Limited Vs. Serjerao and Others, the Hon''ble Supreme Court has held thus:

So far as the question of liability regarding labourers travelling in trolleys is concerned, the matter was considered by this Court in Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others, and it was held that the Insurance Company has no liability. In view of the aforesaid two decisions of this Court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matters afresh in the light of what has been stated by this Court in Smt. Yallwwa and Others Vs. National Insurance Co. Ltd. and Another, and Brij Mohan case.

Triveni Bai (AW-1) has stated in paragraph 1 that Laindas had come near Bijali Office, Tifra on the tractor loaded with cement and had hired them to unload the tractor at Deorikhurd at the rate of 75 Paisa per cement bag. Three labourers, namely, Dukhiram, Sakun and she herself (Triveni Bai, AW-1) had sit in the trolley and Hari, Bhuri and Billoo had sit on the engine of the tractor. The tractor was being driven rashly and negligently and was turned turtle by the driver. Her colleagues had lodged a report in Police Station Torwa.

Statement of Hariram Verma (AW-2) is similar to that of Triveni Bai (AW-1) and he has also stated that the police had come to Government Hospital and recorded the report.

Respondent No. 1/claimant had filed a document Dehati Nalisi (Ex. P-2) before the Claims Tribunal. A perusal of Dehati Nalisi (Ex. P-2) shows that respondent No. 2 was driving the tractor rashly and negligently. On face value of the document Ex. P-2 an inference can safely be drawn that respondent No. 2 was driving the tractor in a high speed and the tractor had turned turtle and, therefore, it is established that the accident was caused due to rash and negligent driving of the tractor by respondent No. 2. Dehati Nalisi (Ex. P-2) also shows that the labourers were hired by respondents No. 2 and 3 to unload the tractor loaded with cement at Deorikhurd. The learned Claims Tribunal has relied upon the document Ex. P-2. Respondent No. 3/owner has deposed that a challan was filed against the driver (Laindas) and the tractor and trolley was seized by the police. He had received the tractor and trolley back on Supurdnama from the Court.

In Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others, , the Hon''ble Supreme Court has held thus:

Once a part of the FIR is relied upon, learned Tribunal cannot be said to have committed any illegality in relying upon the other part and that if the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.

In the instant case, the claimant has relied upon Dehati Nalisi (Ex. P-2) and other documents of the criminal case to prove the factum of the accident and also carrying the cement bags on the tractor and trolley.

After appreciation of the evidence of the above witnesses and Dehati Nalisi (Ex. P-2), it is evident that respondents No. 2 and 3 were carrying cement bags in the tractor and had hired respondent No. 1 and other labourers for unloading the tractor loaded with cement at Deorikhurd; some labourers had sit in the trolley and some labourers had sit on the engine of the tractor.

Ex. D-1 is the insurance policy of the tractor in which the tractor is insured for its operation for agricultural purposes, but respondents No. 2 and 3 used the tractor for the purpose other than the agricultural purposes. In that event, the burden of proving the above fact was on the owner of the tractor and it was for the owner to establish that the tractor and trolley was being used for agricultural purpose, but the owner has utterly failed to prove this fact.

Looking to the evidence available on record, it is evident that at the time of accident, the tractor and trolley was carrying cement, which is not an agricultural purpose. Accordingly, I hold that due to a fundamental breach of conditions of the policy of insurance relating to the use of the tractor, liability for payment of compensation cannot be fastened upon the insurance company and it rests solely on the owner of the tractor and trolley. The insurance company is not liable to indemnify the damage and satisfy the award. In the result, the appeal is allowed. The impugned award, so far as it relates to payment of the compensation by the insurance company, is set aside and the insurance company is exonerated to satisfy the award. The award shall now be satisfied by the owner of the tractor. Rest of the conditions mentioned in the award shall remain intact. No order as to costs.