;-l.."lj'U'l.~L.T.''-<"l-: •iK. ^!a»®;::^^"ffis*Si BEFORE.'I'HEHONBLEI-^Ha^^I^OEOHtlA'I^SGARH AT APPELLANTS ^i-^ J>. v .^il^ ^^^" .-':BILA®mR.fC.G.)i-:'?R?:'i.:11 ... M. A. fGT NQ.^I^' ii£—OP 2009' Kai-ainchand S/d Sobbnafh Nishad (wrongly mentioned as Samiiath), Gaste- Keriwat, Aged about 78 years, R/o Village- Mukdega, Thana- Lailuriga, Distnet- Raigafti (C.G.) .[Vehielfe ' 'Qwner] , '. • ,' • ' . , • | - : ' ,;: 'NON-AFPLICANTNo.I • ' 2^Sukharu Rari S/Q TengariuRarrt,g&jiW)^^ tt^-.. R/o Village- Bhaiyapali, Thana- Lailunga, district- Raigarh (C.G.), • 'l> [Vehicle,, . •; . 'f ; ,: .:.•;'•Driyerj.C \ .' ;^_yJ|:: NON-APPLICANT NQ.:2, 1 VERSUS RESPONDENTS Bydhani Bai W/6 Late Surwan Sai, aged abotit .38 years, ^; Minor (^ylnd^S/d 'S'ur^ Aged abouf 17 years, , S^.-'Minor Khirsagar S/o Surwan •^ii'"v ^Sai,''Aged,abouf 11 years, 4^ Mirior Ahilya D/p Surwanl Sat, ' , Agett^abput 3% years, Anup Sai S/o Rarneshwar, Aged about 61 years,- 6^'STnt. Budhkunwar W/o Anup Sai, Aged about 53 years, ' Respondents no. 2 to 4 through their iiatural guardiah .^inother)! Budhani Bai W/Q Lafe Surwari •Sai, : ;.'f ' -, ; :;',1. . , : :;,.; ,,; All by caste- Gond, J/~ All R/o Village- Don-Qbya, Thana- Lailungai, District- RaigariifC.G.), CIJVIMANTS ; ^7. Bratoch Mariager,, New India Insurance Cofflpany Ltd. Raigarh(C.G.). - NON-APPLICANTNo.-OS. MISC.APPEALUNDERSEGTIQNl^aOIi'MOTQRVEHIGLEACTj GLAIM IN APPEAL VAEUED AT RS. 3,12,g00/- ~-ait < f-l '.\ li^ %% iEf^g^S^^^m^ 'i;?' ^I(^<!OUI^(3^©fflHA^lSGARHA^BEt^S^ MISC. .APPEAL (©)^o. 1067/20d9 APPlN-LANTS MSSi'ONDENTS Karamchand and another Versus Budhani Bai and others lUWtStGNltENCH:- Hon. Slijri^N.K.v^garwal, i; and!Hbn.SKri'R.L.Uliahwar,JJ ;;./"" a; i®: i^E^SENf:- . .. :: • 1 :: :'1:^; '-....^. :^ Sl^ SantoshKuma^~Tiwari,Adv6cateforv^ffi^ Shn Dashra^ Gupta, AdvocateferFesponclen^ ORAL OR©ER (Fassed on this^ 1Q1±I day of Februaiy, 2010) Per N«K.Asarw&l. J ' : : '::i. •'•1. , • ' '. ": :- ": 1. This isowner's appealagamstthe awarddated 23-4-:2i8 ^ in Claim Gase No. 61i/2006.l3y^f^ ,. ClaimsTribunal, Raigarh. :." : : 2. BrieffaEts ofthe case'are asunder:- 3. ^ As per claimants, on 26'-3-20Q6 deceasedl Survan^Sai^ong witU^ ^ several Qther persOnsfmGluiling Narid^Kumar, Adan, G^ ^ had g(^e t6 vill^e CIiandrapurTahsiIDiabhrafe TempleDarsyan1%,siftmgmthefractQrNo.M.P.26E5 ^,.theirreturn,th.esaid^^^^te ' ^ nfigUgerrt dlrying of appellant N6. 2^^ S Ram and Suryan ',."'.Saisuecunibedtothelinjui ssustaiaeditt;t^ !4. ^ jl^sponderrts No.l tQ^6, the^ • ^ ; inother fUed application^u^ Act, 1988 (briefly, j;the' Act>) againsf the - fappellgints ftnd respQiidehtLNo. 2 (daiinmgRs.: 12 lae'S as GomperisatiQn fordeath ofdeCeaseftihthesa.id'aCGideiit.'' . '; Tfte.appeltantsfyed.:wat1^n.statemenfm .was npt denied Kj^^'tt opeurred due to.^gligei^e^^^^^O^^ >e ru :i:'L 6. 7. respondent no. 7, insurance conlpany also denied its liability to pay compensation tb| the claimants by filihg their written statement and by stating that the said tractor was being plied in breach of the policy eonditioiis, Respondents No. 1 to 6/ claimants examined 4 witnesses. The appellants did not examine any person as their witness. Respondent no.7 examined Branch Manager as its witness. Leamed Tribunal on a close scrutiny pf the evidence led,material placed and submissions made, held appellarit no. 2 responsible :fbr the said aecident;! assessed .compen.sation payable to the Glaimants as Rs. 3,12,500/- and held appella.nts responsible for .its payrnent.sxoneratijng the insuraiice company from its liability to pay cpinpensatioriito the claimant pn fhe grourid that yndei- the policy of irisurance, the risk of occupant of tractor and trolley was not covered. Shri Santosh Kuinar: Tiwari, leamed counsel fbr fhe appellant wpuld subniit tha^ thejlearried Tnbunal has.eri^din.j^ the deGeased as "fhircl ^party"; Gbvered under the policy of insurance and thus erred in exQnerating the insurance company from its liability to mdemnify the appellants. He wbuld further iconterid that in view Of Rule 97(7) ofC.G. MQtorVehicles Rules, .1994 (briefly, the Rules pf 1994') caiTying of persbns m tractor irolley is permitfed ;at the tmie pf Mela, Markets, Religious Functibns, Mamages, ;etc. and the deceased traveled by the tracfor for the purpose bf ehandrahasini Telhple Darshan and while refa-irning homel, Satd aecident occurred. Therefere, it •cannof toe said that.the appellanfs haye violated sfatuto^ proyisions by permittmg pers6its alorig with deceased to travel in the said tractor troll6y for the aforesaid purpose. Reliarice has toeen placed iipon the (lecisioh in the case 6f Untted India ;Insuran:ce Co. Ltd. -^ AUra Man^ affd b ers reported in AIR 2008 Delhi 201 arid decisibn of Supreme Court in case bf Unitied ^Itldia Insui^nCe^Coxnpany ^- SaSntan Devei^^^^a^ reporfed ih(2009) 1SCC; 558. ; . We liave heaM learn^ cpunsel &r the^ a^ Perused the award iinpugned andtUe cord ofthe Tribunal. i^ EI-C!C ^;^' 's^' 9. Indisputably, the deceased along with several other persons by sitting in the trolley went to Chandrahasini Temple Darshan and while retuming hoine, thesaidaccident occurred.As per the policy Ex. D-1 filed bythe respondent no. 7/insurance coinpany, the policy issued was act only policy.lndrajeet Kah-a, Branch Manager pf respondent No. 7/ insurance company had categorically deposedlthat under the said policy, only the tractor trolley was insured for agrieultural purposes; labourers Or any pther person sitting iri the tractor trplley were not insured. The appellant did not ask any question t6 the said wifness in cross- << examination. 10. The case ofca^ecsan Isifting in trolley attached to a tractor, as a labourer canie up for consideration befbre the Supreme Court in case of Otiental Insurarice Co. Ltd. v.Brii Mohan reported in (2007) 7 SCC 56 wherein the Sypreme Court has obseryed in para 9 to 11 of the judgment as'under:- "9. In National Insurance' Co. Ltd. v. V. ChinnammaIthisGourtheld:(SCCpp, 701-02, paras 14-16) ' " "14. An. insurance forari owner of the goods or his authorised representative travelling in a vehicle beGame compulsory only 'with effect from 14-11-1994 i.e.fromthe date 6f coming info force ofamendingAct 54 Qf 1994. 15. F\irthgFmore,a' tractpr is not even a goods carriage. The expression 'goods carriage' has been definedin Sectiori 2(14) to meari 'any motor vehiele constructed or adapted for . use soZe?y for the carriage of goods, or any motor vehicle not s6 constructed or adapted when used for the carriage of goods' whereas tractor' has beeh defined in Section 2(44) tomean <a motor vehicle whichisinot itself constructed ' to carry anyload (otherithan equiprflent used | fl04)8)SCC697 s' ^B u NewBi(MaAsstir^deCaLta^--v^g]B^Ram^^ fbr the purpose of propulsion); but exekides a roadroller'. . , - 'Trailer' has been defmed in Section 2(46) to mean , , 'any vehicle, other than a. senu-trailer ahd a sidecar, drawn 6r uM^ded t6 be drawn^b^ inotbrvehicle'. • - ; 26. A traetor litted wrth a traUer rnay o^^ not answer; fhe definition of^^^^ contained iii SeGtion 2{I'^ of tKe Motor 'Vehicles Acf. The ^aetor was meanti t6 be used ior g^csultHG^ pT^oses. T&e;tr^ tractor, thus, rieeessarily i& i^quir®Bt6 be^u for agricultural purposes, 'unless registered otherwise.It may be, as haS been eotitended by Mrs K. Sharda Devi, tHaf 'earnage of veget^ being agricyltural prQduce would lead to ^an iriference fhat ttie, traetor was being; used fw agriculfural j pui^oses ,but; the. same by . itself :':• : : . ,'; :;: •1<' •>'•'.. ! ' ! : " • ••' would not be coristraed to mean thaf the traGtor and trailer oair be used for camage of goods by anpther persori for his busmess activities, The deceased was a busulessman. He used t6 deal in vegetables. After tie piirehased the vegetables, he was to trarisport the same to the market fbr the piirpose ^of sale fhereof and hot for ahy agriculfural ; purpose. Tbe^ tractor and trailer, therefbre, were not bein& used fbr agru^ purposes. Hbwever, even ^if it be assumed that : tUe trailer would answer fhe descr'iption of 'goods carriage' asTcontairied in^SectiQn 2ft4) bf the Motor Vehicles Aet, fhe case would fbe covered ly the decisioni of tHis Coui-tj in Asha Rani2 arid other deGisions ^ the aceident 'ha^. ^ta.tc&ri, plaeej Qn 24-1.1-1991 i.e; much priOrftsyt^imrig^ ^ amendfflenf." (enipfaaSis i&griginal) ; ' f "'^—/' •~.ff 10. Furtherniore, the resporident was not the owner of the tractor. He was also not the driver thereof. He was merely a passenger tTavelling on the trolley attached to the tractor. His claim petition, tHerefore, could| nof have been allowed in view bf the decision of this Court ih JVew India Assurdnce Co. Ltd. y Asha Ranft wherein the earlier decisioh of this Court in New India Assurance Co. v. Satpal Singh3 was oyeri-uled. In Asha Rara^ it wa.s, irrter alia, held: (SCC p. 235, paras 25-27) "25, Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of pr bodily injuiy to ariy passenger of 'public service vehicle'. Proviso appended thereto cafegorically states that compulsoiy coverage m respect of drivers and conducfors of public servfce vehiole and employees carried in a goods vehicle would be liinited to the liability under the Workmen's Coi-npensation Act. It does not speak ofany passenger in a 'goods carriage . 26. In view o£ the changes in the relevant provisions irl the 1988 Act vis-a-vis the 1939 Act, we are of the opinion thaf the meaning of the words 'anylpersoh' must also be attributed having regard to the context in which they haye been used i.e. 'a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereofdo hot enjoin any statutory liability on the owrier of a vehicle to get his vehiele insured tor any passengei; travelling in a gopds vehicle, the insurers would not be liable therefor. 27. Furthermore, sub-clause (;) ofclause (b) of (2000)1 SCG 237 sub-seGtiOn (1) of Secyon 147 speaks of liability which may be incurred by the owner ofa vehicle in respect of death of or bodily injury to any S c *f person or damage to anyproperty pfa third party caused by or arisuig out of the use ofthe vehicle in a public place, whei-eaS sub-clause (nythereof deals with liabilily which may be incurred by the iQwner of a wehicle against the death of or bodily injuiy to any passenger of a public service vehicle caused by oF arising out 6f the use of the vehicle in apublicplace." ' (See alsd National InsUrdnce Co. Ltd. v. Bdmmithi Subbhayamma'1 and United iTf.dialnsurdnce Co. Ltd. v. Tilak Singh5) ; llfa Attho.ugh the effect of t994 amendment in the Motor VehiGles Act did not eall for consideration in Astos Ranft,i a three-Judge Bench of this Court had the pecasion tp consider the said question in Nationcd Insurdnce Co. Ltd. v. Baljit Kaur6 in the following terms^ (SCC pp. 7-8, paraa 17-19) "17. By reasbn of the 1994 amendment what was added is 'including owner of the goods or his authorised representative carried in the vehicle'. The liabilily ofthe owner ofthe vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of ; the goods or his authorised represenfative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any Gapacity whatsoever. If sucH was the intention, there was no • necessity of Parliament to carry out an amendment inasmuch as the expression 'any person' contaihed in syb- clause (i) of clause (fc) of sub-section (1) of Section 147 woLild have inckided the owner of the goods ;or his authbrise^ representative <C2005)12SCC243 5006)4SCC''404 SCC1 ..-^t:' ^^.ss-^ c^ .^ .•,^; besides the IpaSSengers who are gratuitous or otherwise. 18. The observations rnade in this connection by the Court in Asha Rani case^ to which one of us, Sinha, i|J., was a party, however, bear repetition: (SCC p. 235, paTa26) '26. Irfiview of the changes in the relevant provisionsl in the 1988 Acf vis-a-vis the 1939 ' Act, we ara of the opiniQn that the meaning 6f the words ^'any person' must alsp be aftiihuted having regard to the •corifext in!which they 'Bave^S^ used i.e. ^ thii^party'.Kfigpmgm view the proyisions dftlie F&88 Aet, we are of the opinion that as the provisioris thereof do riot enjoin any statutoiy liability on fhe pwner of a vehiele ta^get his vehicle insured for any passenger:^traveiyng in a goods vetuclg,; the insurerswbuldnQtbe liable therefor. 19. In Asha Rani^ it has beeh rioticed thaf sub-clause (i)i of clause (fa) df sub-section (1) of Section 147; of the 1988 Act speaks of liabiUly which may be ineurred by the owner of a vehicle in respect of death of or bodily injury t6 any person or damage t6 any property qf a third party Caused by 6r arising out 6f the 'use of the vehicle ' in a publiclplaee. Furthermore, an owner of a passenger-carryingvehiclemustpaypreiniuinfor covering the|risks 6f the passengers travelling in the vehicle. |The premiym in view of the 1994 ainendment ^would only cover a third parly as also the owher 6f the goods or his authorj.sed representatiye and not any passenger carried in a goods vehicle whether for liire or reward or, btherwise." i : . . 11. , In^view 6f the ratio laid down.,l)y the Supreme Goui-t m GTien|tal ^. ; i^surance Company's ease (supr^j it is ;ciystal clear that ffi '^3P!^on u^v®^ngin e ^W^^^a^^ K.: ^ required to be covered urider statutory policy ofirisuTance issued as perSection 147(1) |of the Act, The word "any person" does not include the person fravelling in the tractpr trolley carried as passenger in the said vehicle either for hire or reward or otherwise. Indisputably the respondent rio. 7 / Insurance Company has not undertaken the nsk of passenger sitting m the trolley by taJdng extra preimum therefor. The deeeased was not ciwner of the tractor; He was also not driver thereof. He was merely passenger trayelling oh the trolley attaGhed to the tractor. Therefbre, the confention raised by Shri Tiwari that the passengers includit^l 'deceased sitting m the trolley are third i party and eovered under the pQliey of mstirance is sails merit. The judgfflerff in'ca^el of United ladia InSula^e Cb. Ltd.—v- Alka Manya an^ othels (supra) does not suppbrt the sta the appellant. In the said judgment, Single Beneh of Delhi High Court in para 13 of|the jud^eht has held that insured and^ msurer are the first ^d second party and all others are fhird parties except that categbry pf persons who itiay,^be exchided specifically by the Act or by the contract of msurance. Here passeriger sitting in |the trplley aftached to the traGtof is not statutorily required fo' t>e compulsdnty insured under Section 147 oftheAct, therefore, sucU persons comes in that categQiyof persons who are not required tp be coyered by the statut6ry: policy under the Act Snd thus ^tahd exch.ided. The Supreme Court in case 6f United Ittdia Insuraace eoittnanv —v-Santrd Devei arid others (supra) has held that ; burden to prove the defence taken under Section 149 6f the Acf is upon the insurance CQmpany. There is ho quarrel with the a&resaid proposition oflaw/but in theinstent^^^G^ neitKer the nsk of passengers sittmg in ffi be statutorily covered ziiider the Act nor was <x)vered by entering into special contract for thatpurpose by charging exfra premium therefbr. Therefbre, the above case law Cited by Shri Triwari is also ofno help toHiirilin the Sacts aridcircumstances ofthecase- 12;.T^.otherc[uestiQn'wliieh.has been^raised by ShriTiwari is;that; ^ ":^hder Rule 97(7) bf',th ;\ authQrized .to carry^.^rsons in the tractor frolley M 'Mela, Market^ReUgiousl^nctions,Marriages. . ^^'^ ?^^^^^^g^^^ ff- 1ICIC C;i 13. In order to appreGiate the afbresaid contentiori, it would be appropriatetoreproducelheRHle 9T(7).whiehreadsthu "97. Carvria^^jjierso^tn GtioSs^C^ wN (3)w (5)m XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX :xxx (7) NotwitHstemdtn^ a^nytfiing ^ ^ fcuf sufc/ecf fia |t^,^rot>is!o?is of^^^ tnrttey Qther ^an f^Qse re^tgwc? ^ (^'n^ organi^feri, J ^icy:m^ .^ti^ and noft'Togr^uM.uW^^^ ^ " u'eigh^ (^uihic^c^es n6fe;ix^d ^QQ^igs mi^ fbtlduwig purpose-' '.:: ; '. :: 1:: ::^ .•1 .. :/ ' . ft) yor can^n^ IZa&ouFers and ^ mem^r c^We^^G^ a0n<%?tuHS(^r(^^»p(Mec^agr^Kure^O connec^ wSh^gT^^T^^iac^dmg^s^ ofarticles .oragncuter®. .! -.'^ - "' . (n) for cserrywig^Brsans ^^^ Morkets, Jte%rfot ^nGtio s,;Jlterna^s and atytte oceaswns providedthat fhe^rtwnber ofpersonsso Kwned shall natexceed 20 dtatime. 14. , True, the above ride Pperinits carrying of persoris in the attaehed t6 tractor at^^^^^ffi Functions, Marnages|ete. pToyNed that^ A t so caraed shaU not excegd 30 at a tmle. In the light pf^ • rtUes, the appeUantsirriay^n violation of varkius ipi-ovisions of .the Act and Rules framed ^ ^ fhereunder prohibitmgus&M^hicleior^^e^^ ^ it does not mean ttiat undef'fhis n-3e, the insuranee comRahy : eah also be held liaBIe foir •sych peESQns^ ^itting in the tractor j trolieyiunyer the Sta^fa^pGUi^^ not; piMyide. ior &e] Uatei^^ the insurer witti respect to ^ r-passengers,. w^o W^ ;nei^er ; Gontracf 6f uisurariGeJw^;;enteredinto,;nop^^ was paid to the exfeht of ^enefit%f^ i'peopte. TherefoFe,t]^ poinlf^a^ s" 10 15. At last, Shri Tiwari would CQritend that the amount awarded is orifaigherside. I; 16. We have examined the award. Clairaant/dependentS are six in number including widow, three minor children, mother and father of the deceased. Accident occurred in the year 2006. Learned Tribunal hasl taken into Gonsideration the income of Rs. 2000/- per nlonth of the deceased; applied multiplier of 15 lopking to the age ofthe deGeased at the time Qf accident as 40 years and thus awarded a total compensation of Rs. 3,12,500/- which in our cpnsidered ppihion caanot be said to be 6n higher stde and this point raised is also sans substanGe. 17. FQF the ioregoing reasons, we do not; iind any substance in the ; instant appeal. The sgnie deserves fo be and is hereby ,;:af:;admissionstage. ! : ;' ', .;' '.^ ^: •• :. ,,,' • •: . '•' •:; " Sd/- N.K.Agrawal Judge SdA R.L. Jhanwar Judge Ci :T-!