HIGILCOURT OF CHHATTISGARH, BILASPUR SINGLEBENCH: HON'BLE SHRI R. L. JHANWAR, J. Misc. Appeal (Cl No. 402/2009 Appellant ICICI Lombard General Insurance Company Limited. Versus RESPONDENTS Parasram and others ORDER POST ON') V Januarv, 2011 Sd/- R.L. Jhanwar Judge 2Jt_7oV2on~ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.A. (C)No. 402 of 2009 APPELLANT (Insurer) ICICI Lombard General Insurance Company Limited, Registered office: ICICI Bank Towers, Bandra-Kurla Complex, Mumbai, 400051, through its Legal Manager, ICICI Lombard General Insurance Company Limited, Lal Ganga Shopping Mall, 3rd Floor, G.E.Road, Raipur (C.G.) Versus RESPONDENTS DRIVER OWNER CLAIMANTS 1. 2. 4. 7. Parasram s/o Baharu Sonkar, R/o Sonkarpara, Simga, P.0. Simga, District Raipur(C.G-) Gopichand s/o late Guru Prasad Tamrakar, R/o Mahamaya Ward, Simga, P.0. Simga, District Raipur (C.G.) 3. Deepak Kumar s/o Late Dhannu Rajak, aged about 24 years. Ku. Kalpana D/o late Dhannu Rajak, aged about 17years. 5. Ku. Jyoti D/o late Dhannu Rajak, aged about 16 years. 6. Ku. Ganga D/o late Dhannu Rajak, aged about 15years. Ku. Girija D/o late Dhannu Rajak, aged about 13years. Respondent No.4 to 7 are minor represented through brother respondent No.3 Deepak Kumar. All R/o Bhatipara, Simga, District Raipur (C.G.) APPEAL UNDER SECTIQN 173 OF THE MOTOR VEHICLES ACT Appearance: Shri Sourabh Sharma with Shri Aditya Sharma, counsel for the appellant. Shri Gautam Khetrapal, counsel for respondents No.1 & 2. Shri Suresh KumarVerma, counsel for respondents No. 3 to 7. ORDER (Passedon^.01.2011) This is an appeal by the insurer i.e. ICICI Lombard General Insurance Company Limited againstthe order dated 23.10.2008 passed f by the 8 Additional Motor Accidents Claims Tribunal (F.T.C.), Raipur in Claim Cases No.27/2008 whereby the learned Claims Tribunal has awarded Rs.2,74,500/- as total compensation to the respondents No.3 to 7/claimants, in a death case. 2. As against the compensation of Rs.4,43,000/- claimed by the claimants by filing claim petition under Section 163 A of the Motor Vehicles Act for the death of Devki Bai in the motor accident occurred on 22.1.1996, the Tribunal, on close scrutiny of the evidence adduced by the parties and after hearing submissions made by them, held that on the date of accident, due to rash and negligent driving by its driver / respondent No.1 the tractor bearing No. C.G.04 D/5097 and trolley bearing No.04 D/5098 (for short 'the offending vehicle'), the deceased Devki Bai, who was found to have been sitting on trolley, died as a result of severe injuries and awarded Rs.2,74,500/- as total compensation for the death of Devki Bai in such motor accident. The Tribunal fastened the liability to pay compensation amount awarded by it, with interest at 7.5% p.a. from the date offiling of claim petition till its realization. 3. Being aggrieved by the impugned order dated 23.10.2008, the insurance company is before this Court. 4. Shri Sourabh Sharma, learned counsel for the appellant vehemently argued that on the date of incident the driver of the offending vehicle was not holding valid and effective driving licence to drive the transport vehicle. It was argued that the deceased Devki Bai was found to have been sitting on the mudguard of the tractor. It was next argued by him that the owner of the offending vehicle has denied that the deceased was not his labourer whereas the Claims Tribunal has erred in holding that the deceased was labourer in the offending vehicle and if it is held that the deceased was labourer in the offending vehicle, the learned Tribunal should have held that for labourers travelling in tractor trolley the insurance company should not be held responsible to pay compensation. On these premises, it was urged that the appellant / insurance company be exonerated from its liability to pay compensation. 5. On the other hand, Shri Gautam Khetrapal, learned counsel for respondents No.1 & 2 supported the impugned order and argued that the ^Ti^ ^.^^. f ^^~, 1 ^ ^__// '%,... ^vy <^^^^;?" % insurer charged Rs.25.00 towards premium for legal liability to one coolie, therefore, the insurer is solely responsible to pay compensation to the claimants. 6. I have heard learned counsel for the parties at length and perused the impugned award and record of the Claims Tribunal. 7. In the present case, the question that arises for consideration is as to whether or not the finding of the Claims Tribunal in so far as it relates to fastening liability on the appellant / insurance company is perverse? 8. So far as driving licence held by the driver at the time of accident is concerned, the insurance company did not adduce any evidence that the driver of offending vehicle did not possess a valid and effective drivisng licence. It was the duty of the insurer to prove that the driver was.not holding a valid and effective driving licence. Therefore, the contention of the learned counsel for the appellant that the driver was not having valid and effective driving licence has no force. 9. Parasram, N.A.W.1 has, in his evidence, deposed that he is the driver of the offending vehicle owned by respondent No.2. He was taking the offending vehicle to the mechanic and denied that no such accident took place with the said offending vehicle. Gopichand N.A.W.2, has admitted that he is the owner pf the said offending vehicle and further he has admitted that Parasram is working as driver. He also denied the fact that no such accident took place with the offending vehicle. As against this, Deepak KumarA.W.1 has in his evidence deposed that the deceased Devki Bai was his mother and prior to 11 months due to rash and negligent driving by its driver the said offending vehicle turned turtle, as a result of which, Devki Bai died. He has further deposed that his mother was working as labourer. Lita Bai A.W.2 has, in her evidence, deposed that she and Devki Bai were sitting on the mudguard of the tractor and travelling on the said offending vehicle from Simga to Khandwa Badi for harvesting wheat and respondent No.1 was driving thevehicle in a rash and negligent manner, due to which, the said offending vehicle turned turtle, as a result of which they fell down and were suppressed by the tractor in which Devki Bai died. In her cross-examination also, it has come that respondent No.1 was negligent in driving the tractor. Moreover, a "•'..^M'il ^ ,??''' , ',"' perusal of Final Report Ex.P.3 and F.1.R. Ex.P.4 would also make it clear that the said tractor was being driven by its driver in a rash and negligent manner. Thus, it is evidently clear that on the date of accident, respondent No.1 was negligent in driving the said offending vehicle and due to such rash and negligent manner, Devki Bai, who was found to have been sitting on the mudguard of the tractor along with Lila Bai, fell down and died. Thus, the evidence of the owner that no such incident took place with this tractor could easily be discarded. Owner did not accept that deceased was his employee working as labourer, therefore, it is clear that according to owner, no labour working under him was travelling in the tractor, but according to evidence and F.1.R. near about 10 labourers including deceased were going to Simga to Khandwa Badi which shows that in tractor trolley labourers were being transported from one place to another. However, no person can sit in the tractor excepting driver and in trolley also no passenger can be carried and according to above discussion the deceased was not working under the owner of offending tractor as his labourer. But she was travelling in that offending tractor for harvesting of wheat. It is also not proved that the owner has any field of wheat for which he was carrying those labourers. In this way, it is clear that the persons who were travelling in the offending vehicle including deceased at the time of incident were neither the labourers nor coolies of respondent No.2 since they were travelling as passengers. Therefore, IMT 39, as mentioned in the insurance policy Ex.D.1, is not applicable. 10. It is clear from the evidence that deceased was found have been sitting on mudguard of the tractor. Under Section 2 (44) of the Act, a tractor has been defined as under: "Sec. 2(44): "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:" This definition clearly shows that besides the driver carrying of any passenger on a tractor is prohibited under the Act. 11. Regulation 28 of the Rules of the Road Regulations, 1989, formulated underthe Motor Vehicles Act, 1998 is as under: "28. Driving of tractors and goods vehicles.—Adriver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry :/;.^^ yr^:^ '% ^ in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward." 12. In view of the above, it is held that the tribunal erred in fastening liability to pay compensation on the appellant/insurer. 13. In the result, the appeal is allowed. The impugned award dated 23.10.2008 passed by the Tribunal is partly modified by exonerating the appellant/insurer from the liability to pay compensation. The liability to pay compensation and interest awarded by the Tribunal rests with respondent No.2/owner. The appellant/insurer may initiate proceedings for recovery of compensation, if any, paid by it from the owner. No order as to costs. Sd/- R.L. Jhanwar Judge