HIGH COURT OF CHHATTISGARH AT BILASPUI Sinale Bench : Hon'bte Shri Dilip Raosaheb DeshmukhT J Misc. Aopeal No.52S/2006 ,.J Royal Sundaram Alliance Insurance Company, Versus Lakhan Lal and 4 ottiere ORDER Poslfor ^ -08-2007 Sd/- DiUp Raosaheb Deshmukh Judge h HIGH COURT OF CHHATTISQARH AT MtSC. APPEALfClNo. 525 of 2006 APPELLANT l-:yl<!S Ro^il Syndarain Alliance Insurance Company, 1<t Floor, Rachna Trade Estate, SNDT Crossing, Plot No. ©4, Law Coltege Road, Pune, Through-The Branch Manager. l' Floor, Chawata Comptex, Near New Bus Stand, Pandri Raipyr C.G. (Non'-Applicant no.81 RESPONDENTS 1 'f Versus 1. Lakhsm Lal Sto Late Budhu Ram, aged about 55 years. 2. Punni Bai, W/o Lakan Lal Patel. agedabout53 years. 3. Smt. Narbadia Bat W/© Late Budhu Ram, aged about 70 years, All R/o Village Amodi, Posl Amoclr, Via Kharora, Tahsil Arang, Distric^ Raipur(C.G.) (Claimante) 4. Tulas Ram Nishad S/o Shri Toran Lal Nishad, aged about 21 yeara (Driver Non»appltcantNo.1) 5. Punit Ram Sahu S/o Ram Singh, aged about 37 years. (Owner "• Non-applicantNo.2) Both R/o ViUage Amotfi, P<®t Amodt, P.S. Kharera, Tahasit Arang, Distt;Raipur(C.G.) MEMO RANDUM OF APPEAL UNDERSECTION 1T8 OF THE MOTOR ^iHjci.^Acnssii Present: Shri Sachin Slngh Rajput, counsel for the appetlant; Shri SudhirVerma, counselfor respondents No.1 to 3, Shri Prakash Tiwari wiih Shri C.R.Sahu, eoynsel for th®respondent No.4 &5. ^^^^&^f ORD6R (Passedon c?(?.08.2007) This appeal by ttie Insurer is directed again^t the award dated 6.10.2006 passed in Claims Case No. 46 of 2006 by the 8th Additjonal Motor Accidente Claims Tribunal (F.T.C.), Raipur (hereinafter refsrr^l as the M.A.C.T.) 2. Admitted facte are that for the accidental death of Lekhram, aged 15 years on 27.1.2006, the M.A.C.T. awarded compensation of Rs.1,17,500/-. Tulas Ram, respondent No.4, was driving ttie Traetor NO.C.G.04/D 0167 to whicha Trafler No. C.G. 04 0/188 was attaehed and possessed avalid driving Iteence. The Insurance policycovers use ofttie Tractor/Trailer onty for Agricultural and Forestry purjws^ and covers the risk of the paid driver and/or cleaner. The Tractor/Traiter was owned by Punitram Sahu, RespondentNo.5, onthe date ofacciderrt. 3. Claimants had, in thelr application uncter Section 166 of the Motor Vehictes Act, 1988 (henceforth 'the Acf), pteaded that due to rash and negligent driving by Tulas Ram, Lekhram, who was Ktting by ttie skle of the driver fell and died. 4. The respondents No.4 and 5, belng the driver arwi Itie owner ofttie Tractor Traiter, denled the pleadings in foto in theirwritten statBment 5. The appellant/lnsurer while denying the claim as also th@ (iability to pay compensation pleaded that Lekhram was seated on ttie Tractor with the Driver which wasa fundamentel breachofthe Insuranc®poliey, and ^UllllMlpt therefore, the Insunance-Company vras liable to be exwierated. In e atternative, it was also contended that even if it was held that Lekhram was fravelling on the Trailer, he wasa gratuitous passenger for whora no extra premium was paid, and therefore, the liabtlMy to pay compensation could not be fastened on the Insurance-Company. 6. The M.A.C.T. ptacing implidt reliance OR the testimony of the driver and disbelieving ctaimant-Lakhanlal's evidence on the groundthat he did not see the accident held ttiat the deceased Lekhram was seated on the Traiter at the time of the acddent which had occurred due to rash and negligent driving ofTulas Ram. Since the driver possessed a valid driving jjcence, the Insurance-Company was liable to pay compensation as risk of third party was statutorily covered under the policy. It awarded compensation of Rs.1,17,500/- against the appellan^lnsurance Company. 7. Shri Sachin Singh Rajput, learned counsel for the Insurance Company contended that the evidence of Tulas Ram ought to have been rejected as an afterthought because he sought permission and entered the witness box before the M.A.C.T. only after the closure of eviderac®by the parties It was further argued that in the firet informatlon report as also in the application under Section 166 of the Aet, the ctaimants had pleaded that Lekhram was seated besides the driver. Havjng placed reliance on the F.I.R. and exhibited thesame ttie cteimants could not tum around and contend that it was not proved that Lekhram was seated on the Tractor besides the driverat the tinrre of accident. Reliance was placed on Oriental Insurance Companv Limited v. Premlata ShuRla and others 2007 INOLAW SC 553 and National Insurance Go. LM V. ^^ \;i Bramaranbike and others. 2006 ACJ 671 white centendlng that since Lekhram was a gratuitous passenger, the Insurer was rwt Babte to pay compensation. 8. On ttie ottier hand. Shri Pratesh Tiwari, learned counsel for ttie respondents No.4 & 5 placed reliance on Rule 97 (7) of the M.P.Motor Vehicles Rules, 1994 (hereinafter referred to as the Rvtes) wherein carrying of labourers and the members of tiie family of agrteuttarlsts for ttie purpose of agricultureor any purpose connwted with agricuttupe incjuding sale and purchase of artictes or agricultore was included. Reljarwe wa® placed on New India Assurance Go. Ltd. v. Dhanuriava Khosla and others. 1988 ACJ 1088 white contending that since Lekhram was travelling in the Tractor as a helper, the insurer cannot escape tiabBity to pay compensation. Shri Sudhir Verma, leamed counsel for respondente No. 1 to 3 argued in support of the impugned award. 9. Having considered the rival eontentions, 1 have pwused the record. In order to properiy appreciate the contentious issue whettier the appellarri/insurer was abte to prove fundamental breach of the poli^ of insurance, it is necessary to took into the pleadings and the evNence ted by the parties as also the contents of the policy. A perusat of the certificate-cum-policy issued by the appellant/mstirer Ex.D.1 leave®no room for any doubt that the policy statutorily eovered third party riisk in respect of death or bodily injury to an accident, as provided under the Motor Vehicles Act, 1988 and atso covered use for agricultural and foresfry purposes. Besides. the basie premium for the Tractor/Trailer, ttie premium for ttie risk of the driver and/or cteaner was atso paid. tn this manner, it is established tiiat the Tractor and Trailer were bottt covwed under the certificate-cum-policy of insurance by the appellant^insurer for the use of agricultural and forestry purpos^ and the ri^c of the driver of the Tractor and ttie cteaner being carried In the Traiter was also covered. '\.'/ 10. In ttie application filed by the daimante under Section 166 of tiie Act, it was specifically pieaded by ttie claimants ttiat the deceased Lekhram had on 21.07.2006 gone as a coolie/labour In ftie Tractor owned by PunitSahu and afterfilling paddyfrom the Krishi Upaj Mandi, Titda,tii® Tractor being driven by Tulas Ram was retumlng witti Leldiram. fass against this, the appetiarrt/insurer had merely denied ttre centente of paragraph 3 generatly and there was no spwific ctenial. Even the owner and ttie driver did not specificatly deny the pteading in paragrap*i 3 of the application under Section 166 of the Act that the Tractor was retuming after filling paddy from Krishl Upaj Mandi, Tilda and that Lekhram Patel was fravelling in the Tractor as a cootie/labour. Under Order 8 Rute S sub- clause (1) of the C.P.C. every allegation of fact in the plaint, if notxleniwd specifically or by nec^sary implication, orstated to be not admttted in (he pleading ofthe defendant, shatl betaken to be admitked ©xceptas against a person under disabilMy. It is thus clear that the fact that the deGeased Lekhram was travelling as a coolie/labour on the TEactor/Traiter (s an admjtted fact. 11. Tulas Ram Nishad, the driver of the Traclor has entered the witness box and deposed that Lekhram was seated in th®Trailer andl fett down upon sudden application of brakes by him. This testimony is wholly unrebutted in cross-examination. Tulas Ram had specificalty denied the suggestion that Lekhram was seated on the Tractor with him and tos reasserted ttiat Leldiram was seated on ttie Traiter. He has fafther admitted, on a teading question being put by the appellant/lnsuper, that Lekhram had gone with htm to the Krishi Upaj Mandl for agrteultural purpos^. Tulas Ram Nishad is a witoiess virti<%e presence at ttie time of accident cannot be questioned since he wss ttie drwer of the Tractor/Trailer at the time of accident. 12. Shri Sachin Singh Rajput, leamed counsel for ftie appellantfinsurer argued that the testimony of Tulas Ram Nishad is an afterthought because he entered the witness box only after the closure of evidence by the parties. A perusal of the order sheets written by the IVt.A.C.T. would show that on 18.09.2006 the owner and the driver had, without adchiclng evidence declared their evidence closed and on the very ne)d date t.e. 26.09.2006 the appellant/insurer had atso closed its case after examination of witness Amit Shrivastava N.A.W.3. An a^licationwas filed on the same day by the owner and the driver for adducing evidence on the ground that due to inadvertenGe they had satd on the eariier date that they would not adduce any evidence. This permlssion was granted and the testimony of Tulas Ram Nishad was recorded on 28.09.2006. tn this manner, the testimony of Tulas Ram cannot be discaKied as afterthought because he was the best witness to have seen the accident being the driver himself. 13. The testimony of claimant Lakhanlal A.W.1 was rightfy discarded because he admitted not having seen the occurrence. Similariy, the testimony of Gulabchand Nishad A.W.2 also does not show as to whether ^ Lekhram was seated on the Tractor oron the Tralter. No spedfic que^tion was asked to this witness in cross-examination as to whether Lekhrarn was seated on the Tractor with the Drwer. Anottier factor which rwjuires consideration is that the F.I.R. Ex.P.1, P.2 or the Dehati Nalishf Ex.P.3 was not lodged by this witness. The presence of Gulabchand Nishad A.W.2 isalso not mentioned either in the Dehaff Ma/feferEx.P.3 or in the F.I.R. Ex.P.1 & P.2. Therefore, the learned M.A.CJ. rightly placed reliance on the whotly unrebutted testimony of the driver Tulas Ram Nishad N.A.W.2 that Lekhram was seated <n the Trailer at the time of accident 14. The initiai burden of proviRg breach of policy is on the insurer. Amit Shrivastav N.A.W.1, the claims in-charge of the appellarrt/insurer, admitted in cross-examination that the appellant/insurer did not get the matter investigated through their authorized investigator. His testimony that the risk of any person fravelling in the Trailerwas not covered under the policy of insurance is belied by the certificate-cum-policy of insurance Ex.D.1 itself since premium was paid to cover the risk for the driver as also the cleaner. Rute 97 sub-clause (7) of the Rules pennits the use of a Tractor/Traiter registered in the name of agriculturist for the following purposes: (i) for carrying labourers and the member of the famiiy of agriculturist for the pu^»ose of agriGulfaire or any purpose connected with agrteHfture induding sate and purchase of artides or agrteuJture. (ii) for canying persons at the tfme of Mela, Markets, Religious Functions, Marriages and atother ceremoniat cl ^ 8 occasions provkled ttiat the number of pereon so carried shall not exceed 20 at a tlme. •^ V-'' Thus, presence of Lekhram on the TraWer at the time of accident was also not in contravention of above Rules. 15. No question has been asked by the appellant/in?urer in cross- examination to Tulas Ram Nishad N.A.W.1 i.e. the driver of the vehicl® that Lekhram was not undertakjng tiw work of ttie cleaner of the Tractor/Traiter. It was the duty of the insurance-Company to elteit alt such facts either by adducing evidence of its investigator or by cross- examination of the witness. Nothing of this sort was <tone by the appetlant/insurer. In ttie Wortd Book Dictionary, the word "cleaner" means a pereon whose work is to keep a tool or machine clean an<t to remove dirt, grease or stains on it. Considering the ag®of Lekhram being only 15 years, itwould be appropriate to pr^ume that Lekhram was ateo working as a cteaner or helper to the driver of the Tractor/Traiter. 16. From the foregoing discussion, it emergw ttiat Lekhram was travelling as cteaner/helper on the Traiter being used for agricultural purpose and driven by Tulas Ram Nishad. a duly licenced driver art the time of accident and met witti an accidentat deatti due to rasti and negligent drMng by Tulas Ram Nishad. The case law in Oriental Insurance Companv Liniited v. Premlata Shukla and othero (supra) cited by ttie counsel for the appellant/lnsurer iscteariy distingulshabte and does not come to the aid of the appellant/insurer becaus®it is not a case where the respondente i.e. driver and owner of the Tractor/Traiter had In •-fc^ any manner tumed around from a ptea taken by them orfrom a document relied upon by them. In the fsrct and cireumstances of this case, breach of potteiy is a matter squarely between the insurance-Gompanfy and th® owner and the driver ofthe vehicte. The contents oftheF.t.R. Ex.P.1 and P.2 or Dehati Nafislv Ex.P.3 by itseff would not be sufRcientto discard ttie testimony of Tulas Ram because Lakhanlal, who had lodged the DeAaff Nali^ii Ex.P.3, was notan eye-witness. Further ttie case law cited by ttie appetlant/insurer in Nationat tnsurance Co. Ltd. V. Bramaranbike and others is also distinguishabie since in the presant cas®,Lekhiam we® employed by the owner of the Tractor/TraUer as a hetper and we® traveHing on the Traiter which vre®under a vattd fX)Ucy of insurance and and was neittiertravelting on the Tractor nor as a gratuitous passenger. 17. Thus, the following points emerge from the fore£p»ingctiscussiens: A) That the TractorfTratier was uncter a valki policy of insurance issued by ttieappeltanyinsurer at the tifflie of accident. B) That the Tractor/Tralter was being use6 for agricutturat purpose at the time of accident. C) That ttie driver of the Tractw/Tratter pwsessed a vatid driving licence. D) The statutory liabilRy of the tnsurer was cover^ under the policy of insurance Ex.D.1 and premtum to cover the risk of the paid driver and helper was paid. E) That Lekhram was travelling in the Traiter and not on the Tractor at th@ tim®of the accktorrt and was not a gratuitous passenger but was a labourer^ielper ©mployedby the owier ofthe Tractor. ^lglNIWN^- i° /<£?/ 18. The learned M.A.C.T. has thus rlghtty fastened the Uability on the appetlanVinsurer on the ground that tt had fatled to prov@ ai^functemental breach of ttie policy of insurance. In the resutt, the appeat being devoid of any merit fails and is dismissed. Dilip Raosaheb Deshmukh Judge .08.2007 ^