1 S.B. Civil Misc. Appeal No. 189/98 Khem Singh Vs. Smt. Ganga & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CIVIL MISC. APPEAL NO. 189/1998 (Khem Singh Vs. Smt. Ganga & ors) Date of Judgment : 23rd July, 2010 PRESENT HON'BLE MR. C.M. TOTLA, J. Mr. T.S. Champawat for the appellant. Mr. Sanjeev Johari for the respondent. BY THE COURT: = = = = In an accident occurring on 27.4.91 involving Tractor No. RSN. 9058, driven by owner appellant one Shri Hemta Ram died and to his dependents legal representatives wife and four minor children learned Tribunal awarded compensation totaling Rs.1,80,000/- payable only by owner and not insurer. Appellant owner challenging above basically request that insurer is liable who be ordered to pay. Brief relevant facts emerging and relevant for the decision of the appeal are like that on 27.4.91 in Tractor No. RSN 9058 driven by owner himself and going by road from Kamba to Barawas were deceased, Bhura Ram and also father-in-law of Gheesa Ram and from the tractor, Hemta Ram, allegedly due to rash and negligent driving of owner driver, near river fell down and over run by tractor sustaining grievous injuries died then and there though taken to hospital. FIR No. 41/91 on report of Gheesa Ram was registered on 28.4.91. 2 S.B. Civil Misc. Appeal No. 189/98 Khem Singh Vs. Smt. Ganga & Ors. Claimant respondents R/1 to R/5 claimed compensation Rs.7,28,000/0 averring that (i) accident and death due to negligence of owner and driver above (i) average age of family members of deceased 85-90 years (iii) deceased 45 years was earning (a) Rs.20,000/- by agriculture (b) Rs.10,000/- working on floor mill and oil extractor (c) Rs.3000/- by manual work annually and used to give Rs.24,000/- to family members – (iv) had he not died would have earned Rs.4,80,000/- upto 60 years and (v) claimed Rs.1,25,000/- for agony, - loss of consortium, affection and Rs.3000/- for actual expenses. Owner appellant in reply states (i) deceased forcibly on his own accord and without consent of driver boarded tractor (ii) no negligence of driver (iii) he aged 55 years – (iv) exaggeratedly compensation claimed expenses all incurred by owner/driver. Insurer in reply broadly stating ignorance asserts that vehicle a tractor meant for only one person i.e. driver – person driving had no valid license and that liability whatever is exclusively of owner. For claimants examined is wife of deceased AW/1, witness Gheesa Ram AW/2, owner in defence examined himself. Learned Tribunal dealing with various issues inferred that incident and accident due to negligence of driver who also owner – claimants dependent upon deceased – earning of deceased above Rs.1250/- and dependency Rs.782/- per month applying multiplier of 16 assessed Rs.1,55,000/- loss of earning and for consortium etc Rs.25000/- and that in vehicle travelling in addition to driver, were three person deceased Gheesa Ram, Bhura Ram which in violation of insurance policy. Accordingly held liability of owner only absolving insurer. Learned counsel for the appellant first argues that insurer not leading any evidence then, it is to be presumed that no breach of any 3 S.B. Civil Misc. Appeal No. 189/98 Khem Singh Vs. Smt. Ganga & Ors. policy condition. The argument is controverted by respondent stating that policy is on record. Considering argument when the policy is statutory one and terms in writing and facts clear surfacing by produced evidence then non-leading of evidence is immaterial. Learned counsel for the appellant thrustly argued that if some act is not prohibited specifically, then that is to be taken as permissible. On this basis, submits that the Act does not prohibit of more than one in tractor who can always be in addition to driver. On the point also submitted that if a prohibition would have been, then permit would have been a must and no statutory bar prohibiting occupation of others than driver is. Stated that this being position, insurer is liable for any injury consequential to use of vehicle. Learned counsel submits that it not a goods carriage of public service. For respondent submits that this vehicle only for restricted use and only driver is permitted. Considering above arguments from other angle, even if it is so (not prohibited) then statutorily not necessary is being of such a policy covering a passenger (in tractor) then not covering such risk and liability a contractual policy has to be and no such policy here is. Analysing above argument, in Chapter IV of the Act, are provisions regarding permits of transport vehicle. Section 66 specifically mentions that a motor vehicle is not to be used in any public place as “a transport vehicle” without complying conditions of permit. Transport vehicle, means a public service vehicle, meaning thereby for carriage of passengers. If the tractor is a transport vehicle, then mandatory is necessity of permit and not being permit, plying at public place is prohibited. Tractor as defined in the Act as that not to be meant to carry load and is included in light motor vehicle. It is also that a vehicle cannot be driven, unless is registered per provisions of the Act. While registering, conditions 4 S.B. Civil Misc. Appeal No. 189/98 Khem Singh Vs. Smt. Ganga & Ors. appropriate can be for use or restricting the use for or in a particular manner and some such terms expressly or impliedly as prescribed in the Act or other relevant statute. Looking to this position, argument raised regarding non-prohibition, is of no force. Considering above argument from other angle, even if it be so (not prohibited), then statutorily, not necessary being such a policy covering a passenger (in tractor) then in order to cover such or any risk and liability for such occupiers a contractual policy has to be and no such policy here is. Other argument raised and emphasized is that deceased being employed for agriculture work in that capacity, while returning in tractor owned by the employee stand covered. Vehemently submitted that the word “any person” appearing in Section 147 covers such a person. In support of contention, cited are AIR 1998 SC 1433 Amrit Lal Sood and Another v. Smt. Kaushalya Devi Thapar and Others; RLW 2003 (1) Rajasthan pp.601 & 652, National Insurance Co. Ltd. v. Keshrimal & Others and National Insurance Company Ltd., Jodhpur v. Smt. Deewa & Others. Argument for appellant also is that if no fundamental breach of policy, then insurer is responsible and, in this regard, also is cited (1996) 4 SCC 647, B.V.Nagaraju v. Oriental Insurance Co. Ltd. Learned counsel for the respondent insurer countering above, argued that with the tractor, no trolly was, so no question of any person occupying even for the purpose the tractor meant for arises– owner himself was the driver and no reason not to believe the evidence of owner who states that deceased going on foot, boarded, despite resistance of the owner driver and insurer not responsible. Argued that no liability whatsoever of insurer is. Relied on is (2007) 7 SCC 56, Oriental Insurance Co. Ltd. v. Brij Mohan & Others. For appreciating above argument, having a look at the said facts 5 S.B. Civil Misc. Appeal No. 189/98 Khem Singh Vs. Smt. Ganga & Ors. and findings of the tribunal, it appears that in claim itself, is mentioned that in addition to respondent, driver also in tractor were deceased, Bhura Ram and father-in-law of Ghisa Ram. Thus, one plus three were. Shri Ghisha Lal, who lodged the FIR, in his deposition, AW 2 says that he and Himmata Ram called by respondent Kheem Singh, were agriculture labourers at field of Kheem Singh and when returning, they were in tractor driven by Kheem Singh. AW 2 categorically says that on a “paatiya” ( bench like), were they sitting and because of negligent driving, Himmat Ram fell down, tractor over running him. Witness says that Himmat Ram was not a regular labourer, but occasionally worked for Kheem Singh, but in claim not is mentioned such. FIR also mentions of in tractor being one plus three. As such established is that tractor driven by Kheem Singh and also occupied by other three. Registration Ex.D3 mentions “sitting capacity (including driver) one”. Thus, for the vehicle, permission was only for one occupant be driver or any else. Policy Ex.D2 also mention passenger carrying capacity as one and the policy being “a policy for act liability”. Per provisions of S.147, for passengers, if their travel permissible mandatorily have to be a policy covering passenger (not here is). Here, the deceased was a passenger who appears to be gratuitous. For the above reasons, since the registration also permits for only one occupant and policy as above, so argument that in absence of fundamental breach insurer is liable, cannot stand. Legal position and principles governing insurers liability are clarified and enunciated in Aasha Rani's case, thereafter hither to generally the principles held are being followed, and in continuation of above, are many including Baljeet Kaur's case. Applying settled principles here and for the deceased, who was a gratuitous passenger andn ot in any way covered by policy, insurer cannot 6 S.B. Civil Misc. Appeal No. 189/98 Khem Singh Vs. Smt. Ganga & Ors. be held liable to pay compensation. Now, the argument of first ordering insurance to pay and then insurer, to recover from owner, very relevant are facts as above, fundamental seems to be the breach of conditions not only of policy, but also as to what for and authorizing what registration is. As is observed, in Baljeet Kaur's case and other cases not generally always and first insurer is to be asked to pay. When is straight apparent breach as in the present case, in the opinion of the Court, not justified and appropriate is - neither is there any specific reason, directing insurer to pay first and then they at liberty to recover from the owner. However, for interim paid under Section 140, no recovery from claimant is to be made. For the reasons above, appeal of owner Kheem Singh, bearing No.189/98, is to be rejected. The appeal is rejected. (C.M.TOTLA), J.