F.A.O. No. 710 of 1987 & F.A.O. No.947 of 1987 -1- In the High Court of Punjab and Haryana at Chandigarh F.A.O. No. 710 of 1987 Date of decision: July 20, 2009 Deen Mohammad .. Appellant Vs. Ali Mohammad and others .. Respondents F.A.O. No.947 of 1987 United India Insurance Company Limited, Gurgaon .. Appellant Vs. Deen Mohammad and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. J.L. Malhotra, Advocate for the appellant in FAO No. 710 of 1987 and for the respondents in FAO No.947 of 1987. Mr. Munishwar Puri, Advocate for the Insurance Company. A.N. Jindal, J This judgment of mine shall dispose of two connected FAO Nos. 710 and 947 of 1987, having arisen out of the award dated 2.5.1987 passed by the Motor Accident Claims Tribunal, Gurgaon (herein referred as 'the Tribunal'), whereby the claim petition was partly accepted and compensation of Rs.25,000/- was awarded against the respondents along with interest @ 12% per annum. The claimants have sought enhancement of the compensation, whereas, the company has sought to set aside the judgment. In brief, the facts are that on 21.8.1986 Ali Hussain respondent No.2 along with the appellant while travelling in tractor trolley No.HRP 7440 was going from Teoru to Nuh. On the way he gave lift to Attarbi. F.A.O. No. 710 of 1987 & F.A.O. No.947 of 1987 -2- Thereafter, he started driving the vehicle rashly and negligently. When Ali Mohammad was coming down from the hillock towards Nuh, the tractor trolley turned turtle due to which the appellant/claimant (herein referred as 'the claimant') fell down on the ground and suffered injuries. The case was registered against the respondent No.2. While claiming the amount of compensation, it was urged that the petitioner-appellant was 35 years old and was earning Rs.600/- per month as salary from the respondent No.1 and in addition thereto, he was earning Rs.400/- per month by cultivating his own land. He also remained admitted in the hospital for 13-14 days. Thus, he prayed for compensation to the tune of Rs.1 lac. The respondents contested the claim petition. Besides variety of objections raised by the respondent Nos.1 and 2, the Insurance Company also submitted that the respondent No.2 was not holding a valid driving licence and was not working under the employment of respondent No.1 on the date of alleged accident. If the accident is proved, even then the petitioner-appellant was gratuitous passenger, therefore, the Insurance Company is not liable to pay compensation. It was further submitted that since the tractor in question was insured but the trolley on which the petitioner-appellant was travelling was not insured, therefore, the Insurance Company is not liable. From the pleadings of the parties, the following issues were framed :- 1. Whether the accident in question and the resultant injuries suffered by Deen Mohammad, petitioner took place due to rash and negligent driving of Tractor Trolley No.HRP-7440, by its driver Ali Hussain, respondent No.2, during the course of his employment under respondent No.1? OPP 2. To what amount of compensation the claimant is entitled and from whom? OPP 3. Whether respondent No.2 was not holding any valid driving licence, at the time of accident. If so, to what effect? OPR-3. F.A.O. No. 710 of 1987 & F.A.O. No.947 of 1987 -3- 4. Whether the claimant was a gratuitous passenger in the tractor trolley No.HRP-7440. If so, to what effect? OPP- 3 5. Relief. Issue No.1 was decided in favour of the claimant. While deciding issue No. 2, it was observed that since trolley was part of the tractor and there was no limitation on the use of the trolley, as such Insurance Company was liable. Issue Nos.3 and 4 were decided against the respondent No.3. Ultimately, the respondents were directed to pay a sum of Rs.25,000/- as compensation along with interest @ 12% per annum from the date of filing of the petition till the date of actual payment. Being dissatisfied, this appeal has been filed by the claimant for enhancement. At the same time, the Insurance Company has also assailed the judgment by way of an appeal. Mr. Munishwar Puri, Advocate for the Insurance Company, has again agitated the trolley being not the part of the tractor, the respondent could not drive the trolley, therefore, the Insurance Company is not liable. In this regard, he has placed reliance on the judgment delivered in case National Insurance Co. Ltd. vs. Thirakappa Ramappa Itagi and another, 2002 ACJ 753 and also Sujan Singh and others vs. Amar Singh and others 2006 (3) PLR 639. Learned counsel for the respondent- company has been seeking dates in order to seek instructions from the company, whereas, officials of the company come daily in the Lok Adalat and the learned counsel could seek their advice there and then, therefore, he appears to be gaining time for just prolonging the matter. Having perused the award, it transpires that it is not a case where the injured was travelling as gratuitous passenger for hire or reward. While examining Sujan Singh's case (supra), the same is not applicable to the facts and circumstances of the instant case. In that case, tractor was carrying passengers in connection with the marriage party and at that time, the tractor had turned turtle. In that situation, the persons travelling by the tractor trolley could be treated as gratuitous passengers. But, in this case, F.A.O. No. 710 of 1987 & F.A.O. No.947 of 1987 -4- the injured was not travelling as passenger and he was employee of Ali Mohammad owner, therefore, he cannot be termed as gratuitous passenger. Similarly, Thirakappa Ramappa Itagi's case (supra) is also not applicable to the facts and circumstances of the present case as in that case the trolley was being used for unloading the soil. The counsel for the appellant has also placed reliance on a judgment delivered by the Karnataka High Court in case Oriental Insurance Company Limited vs. N. Chandrashekara and others, 1997 ACJ 512. In this regard I need to reproduce the following observations wherein the Hon'ble Judge observed in favour of the respondent-claimant : “4. With regard to the contention that there is a violation of the terms of the policy inasmuch as the policy has prohibited the use of the tractor for drawing a trailer is concerned, it must be pointed out that an insurer cannot avoid its liability under the policy on the ground that there was violation of some terms of the policy unless its objection falls within the four corners of the defence which the Motor Vehicles Act permits to be taken by the insurer. As the accident took place in 1987 the provisions of the Motor Vehicles Act, 1939, are applicable. Section 96 (2) (b) of the 1939 Act specifies the conditions, excluding the use of the vehicle, violation of which would give a right to the insurer to avoid its liability and that clause reads as hereunder : “Section 96 (2) (b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely: (1) A condition excluding the use of the vehicle - (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or © for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a F.A.O. No. 710 of 1987 & F.A.O. No.947 of 1987 -5- transport vehicle or (d) without side-car being attached where the vehicle is a motor cycle. It will be seen that a condition excluding the use of the vehicle for drawing trailer is not one of those conditions included in the above provision and as such the insurer cannot seek to avoid its liability on the ground that there was violation of the terms of the policy by the tractor being used to draw a trailer. The other contention raised by Mr. H.G. Ramesh has some force and requires consideration. Section 2 (18) of 1939 Act defines 'motor vehicle' as hereunder : “... 'motor vehicle' 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.” Section 2 (30) defines a 'tractor' as hereunder : “.. 'tractor' means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;” Section 2 (32) defines a 'trailer' as hereunder : “ .. 'trailer' means any vehicle other than a side-car drawn or intended to be drawn by a motor vehicle;” However, the Karnataka High Court in later part of the judgment, without properly interpreting the Sections 2 (18) and 2 (30) of the Motor Vehicles Act, 1988 (for brevity, 'the Act') made out a view absolving the company. F.A.O. No. 710 of 1987 & F.A.O. No.947 of 1987 -6- On perusal of Section 2 (32) of the Act, it could be easily traced that trailer excludes a side-car the annexing of which is a non compliance of the terms and conditions of the policy and it is also not a motor vehicle as defined in Section 2 (18) of the Act, requiring its insurance. Having examined the view taken by the Karnataka High Court in N. Chandrashekara's case (supra) it reveals that the observations appear to have taken on the assumption that the tractor and the trailer both are independent vehicles and the tractor trailer has been termed to be commercial vehicle but actually trailer cannot be termed as motor vehicle at all. As a matter of fact tractor has been developed as vehicle meant for agricultural purposes and is not a commercial vehicle. The tractor itself cannot carry any load or the passengers or work in the fields unless it is attached by a trolly or other agricultural implements or appliances. The tractor includes its appliances such as trolley. It has also been observed by the Division Bench of this Court in case United India Insurance Company Limited vs. Surinder and others, 2004 (4) RCR (Civil) 211, that tractor trolley includes any equipment including trailer attached to it and is considered as part of the tractor and is covered under the policy. No further elaborate discussion is required as is clear from the aforesaid Division Bench judgment, therefore, trailer being part of the tractor can be said to be covered under the Insurance Policy. Hence, the company is liable for the injuries suffered by the claimant. Now coming to the compensation, it may be observed that the petitioner-appellant was 35 years old, getting Rs.600/- per month as salary from respondent No.1. In addition to it, he was getting Rs.400/- per month by cultivating his own land. He suffered injuries and remained in the hospital for 13-14 days. As regards injuries, Dr. Akhlakh Ahmed (PW6) has deposed that on the order of the Judicial Magistrate Ist Class, Gurgaon, dated 16.10.1986, he examined Deen Mohammad and opined that his disability was 27%. He has testified his report Ex.PD to be the correct and according to this report, there was stiffness and restriction of movements of the left knee. He has also deposed on examining of x-ray, there was corresponding relation between the injuries suffered by the injured and the F.A.O. No. 710 of 1987 & F.A.O. No.947 of 1987 -7- disability which he had opined. In nutshell, according to him the injured suffered 27% permanent disability of the leg. He was manual labourer. His livelihood was dependent upon his leg, about which he was crippled for which he may not be compensated but some reasonable compensation could be awarded to him. The Tribunal while awarding Rs.25000/- classified the heads under which it had awarded the same, however, amount of compensation was awarded to him for pain and sufferings, medical treatment, attendant, transportation, future treatment for disability and hospitalization for which at least Rs.75,000/- would be reasonable if awarded to him. Consequently, I partly accept the appeal, and modify the award and enhance the compensation to the tune of Rs.75,000/- over and above the award amount. Now the claimant would be entitled to receive a sum of Rs.1,00,000/- as compensation along with interest @ 6% per annum on the enhanced amount from the date of application till realization, whereas, FAO No. 947 of 1987, filed by the Insurance Company, stands dismissed. July 20, 2009 (A.N. Jindal) deepak Judge