FAO No.635 of 2005 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.635 of 2005 Date of Decision. 01.09.2010 The New India Assurance Company Ltd., through its Assistant Manager, Regional Office, SCO No.36-37, Sector 17, Chandigarh ......Appellant Versus Surinder Kaur widow of Amarjit Singh son of Sh. Sital Singh and others .....Respondents Present: Mr. N.K. Khosla, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The insurance company challenges the liability on the ground that the person that died was seated on the mudguard of the tractor and he was run over at the time of alighting from the tractor. The contention was that a person, who was seated on a mudguard of the tractor, which was not designed to carry passengers, there was no policy of insurance to cover the risk to such a person. Incidentally, The person that died was not a workman or in any way connected with the owner of the tractor. The Tribunal held, placing reliance of the judgment of the Hon'ble FAO No.635 of 2005 -2- Supreme Court in New India Assurance Co. Ltd. Vs. Satpal 2000(1) PLR 464 that even a gratuitous passenger was entitled to be covered for the risk. 2. Learned counsel appearing for the insurance company would contend that the decision in Satpal's case was reversed in New India Assurance Company Ltd. Vs. Asha Rani 2000(1) PLR 464 and re-affirmed in subsequent Judgment in National Insurance Company Limited Vs. Baljit Kaur 2000(4) AIR SC 212. The Tribunal had actually found as a matter of fact on evidence that the deceased was a gratuitous passenger in a tractor. If it was merely a case of a tractor running over a pedestrian, the insurance company would become liable for a pedestrian in such case would have been a third party. A person, who was seated on a mudguard and who gets killed at the time of alighting from the tractor must only be seen to be still a passenger of the vehicle and he could not be seen as a pedestrian. The proximity of his travel to his alighting from the vehicle will only require the situation to be treated as a passenger in the tractor getting killed in an accident. It is immaterial that he was alighting from the vehicle when the driver did not exercise caution to let him alight and get away from the vehicle. It could have made a difference if the passenger had safely alighted and he had taken a few steps when the vehicle had run over him. Between life and death, there is a split second difference and so too, as to when a passenger FAO No.635 of 2005 -3- becomes a pedestrian and vice versa. Each situation has different set of legal incidents to apply. 3. To set the law in its fuller perspective, I may also refer to some decisions that have come about on this score. In Oriental Insurance Company Ltd. Vs. Vijay Singh 2007(1) PLR 600: 2008 ACJ 588: 2007(1) RCR (Civil) 63 a Division Bench of this Court was dealing with a claim by owner of the tractor sitting on mud guard was suffered an amputation of leg in the accident. At that time, there was fodder loaded in the trailer attached to the tractor. Treating the situation as the owner of the goods travelling along with the goods in a goods carriage, the Division Bench of this Court held the insurer liable. As a decision of the Division Bench of this Court, I would have been normally bound by this decision but there have been decisions of the Supreme Court on the same subject that explains the position from two legal stand points: (1) The tractor by itself is not a goods carriage, by the definition contained under teh Motor Vehicles Act. (2) The Tractor is not designed to carry passengers and there is no statutory requirement to cover the risk to such a person. The precedent value of Vijay Singh (supra) has been consequently undermined by the decisions of Hon'ble Supreme Court referred to infra. 4. In New India Assurance Co. Ltd. Vs. Vedwati 2007(9) SCC 486, the issue of liability of an insurer for an accident occasioned to a person travelling on the tractor which overturned was directly FAO No.635 of 2005 -4- in question. The Hon'ble Supreme Court examined the case in reference to the provision detailing the definitions under Section 2(14)-goods carriage, 2(35)-public service vehicle, 2(40)-stage carriage and 2(47)-transport vehicle. The court held that (para 13) "the inevitable conclusion, therefore, is that the provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor. This decision, however, does not actually consider the definition of tractor itself. The New India Insurance Co. Vs. Darshana Devi 2008 (7) SCC 416, the deceased was a labourer employed by the owner of the tractor who was travelling on mudguard but got run over under the wheels of the tractor. The case was examined with reference to statutory requirements of compulsory insurance under Section 147 of the Motor Vehicles Act and how the person travelling in a tractor was not a third party within the definition of Section 147, while holding that the insurer will not be liable, it still did not exercise its discretion under Article 136 of the Constitution to interfere to deny the claimant the compensation awarded but granted to the insurer a right to recover the amount from the owner/insured. 5. In both the decisions of the Hon'ble Supreme Court noted above, it may be seen that the definition of tractor under Motor Vehicles Act was not referred and they did not examine if a FAO No.635 of 2005 -5- person who was not a driver, could have at all travelled in a tractor in any capacity, be he an owner of the goods carried in a trailer attached to the tractor or as a labourer or as a gratuitous passenger. Oriental Insurance Co. Ltd. Vs. Brij Mohan 2007(7) SCC 56 was also a case of an accident involving a tractor but was a slightly better situation of a labourer travelling in the trailer attached to a tractor. This decision dealt with an earlier decision in National Insurance Co. Ltd. Vs. Chinnama and others 2004(8) SCC 697 which examined the case with reference to Section 2(44) dealing with the definition of tractor. In para 15 in Chinnama's case (supra) the Hon'ble Supreme Court had observed, 'a tractor is not even a 'goods carriage'. In Brij Mohan's case, the deceased was a labourer travelling in the trolley attached to the tractor. The Hon'ble Supreme Court was not even prepared to consider the claim as falling within the requirement of compulsory insurance available to a workman to be covered under the Workmen's Compensation Act in the manner provided under Section 147 (2). It examined the case only as a person who was a passenger in a goods carriage who was not required to be compulsorily covered, in the manner understood and interpreted in New India Insurance Co. Ltd. Vs. Asha Rani and others 2003(2) SCC 223. If the claimants were allowed to recover the compensation, it was not in acknowledgement of any legal right but in the exercise of its jurisdiction under Article 142. FAO No.635 of 2005 -6- 6. The legal position emerging from the decisions of the Hon'ble Supreme Court referred to above leave irresistably to the conclusion that (i) a person travelling on a mudguard, is not a person who is required to be covered under a policy of insurance to which Section 147 of the Motor Vehicles Act applies; (Ii) A tractor is not meant to carry passengers and (iii) a person who does so, leaves no trail for prosecuting a successful claim either by himself for bodily injury or to his representatives for death arising out of the accident, except in a discretionary jurisdiction that the Hon'ble Supreme Court could provide for compensation by invoking Article 136 or its omnibus power to do complete justice to parties under 142 of the Constitution of India. 7. For an exhaustive consideration of this issue, the decisions that deal with situations of traveller in a tractor could be noted: (i) In New India Assurance Co. Ltd. Vs. Vide Devi 2001(1) PLR 396: 2001(4) RCR (civil) 46, where a single judge of this Court (P&H) held that a tractor fitted with a trolley trailer is a motor vehicle. (Actually, it is a goods carriage). The Insurance Company cannot escape its liability. While so doing, it relied on New India Assurance Co. Ltd. Vs. Satpal AIR 2000 SC 235, which was subsequently over-ruled in Asha Rani's case (supra). This judgment loses its precedent value by the Hon'ble Supreme Court's ruling in Asha Rani; (ii) In Kaveriammal Vs. Sambandan 2008 ACJ 974, the Madras High Court held that a cleaner FAO No.635 of 2005 -7- travelling on a mudguard of the tractor leaves no cause of action for claim to damages for death arising in an accident against an insurer. Only the owner is liable; (iii) In National Insurance Co. Ltd. Vs. Bramarbike 2006(2) RCR (civil) 394, the Karnataka High Court held that the seating capacity for a tractor is only that of a driver and no other person. The policy of insurance, therefore, does not cover risk of an inmate of a tractor, such as a person travelling on mudguard. The insurance company is, therefore, not liable; (iv) Smt. Bargtribai Vs. Nathu Singh 2009(1) TAC 95 dealt with a case of a labourer travelling in a trailer trolley which had carried agricultural produce and the accident had taken place at Mandi. 8. This Court has itself considered the proposition in the light of the definitions of tractor and the relevant Transport Rules relating to Regulations 28, in United India Insurance Co. Ltd. Vs. Premwati in FAO No.1857 of 2005 dated 09.10.2008 to come to the conclusion that the insurer of a tractor shall not be liable for compensation for death or injury arising out of accident while travelling on the mudguard of the tractor. When we say that the insurer is not liable, we are doing so, with reference to the fact that there is no policy of insurance at all to cover such risk . Here, the question of breach of terms of policy is out of ken for consideration. When there is no insurance cover, there is no principle of 'pay and recover'. We shall resort to the latter FAO No.635 of 2005 -8- principle only when there is an insurance cover but the insured has committed a term policy that disallows a right of indemnity to the insured by reason of such breach. What shall be possible for the Hon'ble Supreme Court to do in its discretionary exercise of jurisdiction under Article 136 or in its attempt to do complete justice between parties under Article 142 of the Constitution shall not be invoked by this Court and much less, the subordinate judiciary. 9. The claimants cannot have any relief against the insurer. The liability shall still be seen only as attached to the owner of the tractor for his vicarious liability for the negligent act of his driver. While upholding the award regarding the quantum for the claimants, the right shall subsist only against the owner-insured and the insurance company is entitled to be wholly exonerated. The award casting the liability on the insurer is set aside and the appeal is allowed to the above extent. (K. KANNAN) JUDGE September 01 , 2010 Pankaj*