FAO No.4501 of 2009 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4501 of 2009 Date of Decision. 16.08.2010 The New India Assurance Company Limited, SCO No.36-37, Sector 17- A, Chandigarh through its Chief Regional Manager ......Appellant Versus Santro Devi wife of late Mehar Chand son of Shri Agdi Ram and others . .....Respondents Present: Mr. R.C. Kapoor, 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 ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The insurance company is on appeal, having taken benefit of defences on all grounds under Section 170 of the Motor Vehicles Act, on the issue of liability, negligence and quantum. It was a case of collision between a private car and a tractor with a trolley attached. The case of the claimants was that the deceased person, who was a driver in the car met with an accident in a collision with the insured's truck when the tractor has swerved at the middle of the road and the car, which was coming from behind hit the tractor and the driver died. In this case, the statement of a passenger in the car had been immediately recorded in a DDR but the police did FAO No.4501 of 2009 -2- not take the same to a stage where any criminal case could have been registered against the driver of the tractor. In its perception, the facts brought out in the statement recorded in DDR did not show that there was any negligence on the part of the tractor. The recitals in the DDR were only to the effect that the accident just happened when the tractor stopped mid-way and did not specifically attribute any negligence to the driver of the tractor. 2. At the trial, the evidence of PW6, who was an owner of a roadside dhaba was that the accident had taken place just outside his restaurant. When the accident had taken place, which he noticed on hearing the sound, a tractor had just then stopped and a car coming from behind hit the tractor and the accident had taken place. He had also given evidence to the effect that it had been stopped without any indication and this fact was urged at the time of trial to be not sufficient attributing the finding of negligence. It must be noticed that issue of negligence that has to be proved in a proceeding before the Tribunal does not require the extracting standard of proof for what would obtain for a conviction for an offence under Section 276 of the Indian Penal Code. It is always stated that a criminal case trial or the result of its decision will have no more evidentiary value than the fact that there was a criminal case. The issue of negligence in the Tribunal will have to be appreciated on the basis of evidence, which is brought before the Tribunal. In this case, the person, who was a passenger in the car had been examined. A person who was an owner of a restaurant before which an accident had taken place had also been examined. FAO No.4501 of 2009 -3- In a case where two witnesses speak about how the tractor trolley had been parked at the middle of the road suddenly and how a collision had taken place, it was absolutely essential for the driver of the tractor to take the witness stand and explain how the accident had taken place and how there was no negligence on his part. It was a case of no evidence on the side of the respondent against evidence given by the witnesses that the accident had arisen by the negligent conduct of the driver in parking the vehicle at the middle of the road without adequate signs for stopping the vehicle. This fact, in my view, would be sufficient to hold the driver of the tractor liable as responsible for the accident. It is immaterial that FIR had not been lodged. It is also immaterial that the criminal case was not lodged or prosecuted against the driver. The standards of proof for a finding before the Tribunal are much distinct than how it has to be established in criminal case against the driver. The finding of negligence on the part of the driver of the tractor is, therefore, affirmed. 3. On the issue of liability itself, the learned counsel would submit that the tractor was a goods carriage with a trailer attached with wooden logs having been carried in the trolley. To him, this amounted to user of the vehicle against the puprose for which it was ensured namely the tractor was to be used only for agricultural purpose and the transportation of wooden logs was not for agricultural purpose. I would see this argument be rather strange that an agricultural operation must be only tilling. There are a whole host of activities connected with agriculture, horticulture and FAO No.4501 of 2009 -4- forestry. Agriculture is a generic term and agricultural activity could well include carrying wood. Wood does not come from the blue. Timber has to be grown. Cutting of logs and transporting them are just as well agricultural activities as any other connected activity could be. Even an argument by the insurer that the user of the vehicle was against the terms of the policy is meaningless, for if there is a claim by a third party or his representative, who had no participation in the manner of user of the vehicle against whom negligence is attributed, the insurer cannot plead that the insured's use of the vehicle was for a purpose, which was not authorized, unless the claimant himself was a person, who was guilty of such unlawful user or he has any role to play in such user. The insurer's defence under Section 149(2) cannot be in effect to say that there had been user of the vehicle which was not permitted in answer to a third party's claim. It is no evidence for insurer to plead that the insured's vehicle was being put to a different use. This approach was illustrated in a slightly different form by the Hon'ble Supreme Court in National Insurance Co Ltd. vs Swaran Singh (2004) 3 SCC 297. In that case while examining the issue as to when the insurer would be liable in a case where the driver did not have a valid driving licence, the Court pointed out to instances when the want of licence itself would be irrelevant. The example cited by the Hon'ble Supreme Court was when the accident took place on account of a mechanical defect or when it was an act of God, the issue of want of Driving Licence would be irrelevant. This is only to illustrate that a mere violation of terms of policy cannot avail to an insurer to plea FAO No.4501 of 2009 -5- an exclusion of liability under Section 149(2) of the Motor Vehicles Act. The logic that was applied by the Hon'ble Supreme Court in Swaran Singh's case will apply afortiorari to a situation like the present when the deceased met with an accident not because the vehicle was carrying logs. It would defeat all canons of logic if we would assume that the same trailer had carried foodgrains instead of logs, the accident would not have taken place. The accident as an incident for a third party was by the user of a motor vehicle and the accident was not on account of any use, which was prohibited under the terms of the policy. I, therefore, reject also the contention that the insurer would not be liable for the claim or cannot stand indemnity for the insured. 4. As regards the issue of quantum, the contention was that the income tax return, which had been produced in the Court showed that he was having income to the tune of Rs.49,200/- in a year and in yet another income tax return his income was shown as Rs.95,000/- and odd. The Tribunal took the income of the deceased to be Rs.1,00,000/- provided for a contribution to the family to the extent of Rs.65,000/- and applied a multiplier of 10 and provided for the compensation. In this case, it had been brought out on record that he was an agriculturist and even the income tax returns showed his income from agriculture, though the income itself could not be added for assessment of taxable income, the source being agriculture which is exempt from income tax. The Tribunal, while determining the compensation, proceeded as though he could not have had any agricultural income at all. It was in evidence that the FAO No.4501 of 2009 -6- deceased owned more than 10 acres of land. The crops on agricultural land do not grow on their own. They have to be cultivated. They have to be managed and the skills of labour are definitely to be employed. Even the other source of income namely the electronic shop, we will have to factor the lack of managerial skills of a person, who died in an accident. The deceased was aged 50 years and he ought to have been at peak on his income earning career and a person, who dies leaving the estate that would require an active management of his business and agricultural lands ought to have left a huge weight for the claimants for employment of requisite personnel for running the business and for taking care of the agricultural lands, it would have resulted in extent more than lakhs of rupees. If the income of the deceased was, therefore, taken as Rs.1,00,000/- and when the Tribunal was taking the contribution to the family at Rs.65,000/-, I do not find any error in the approach of the Tribunal. 5. The award of the Tribunal, under the circumstances, is modest and it would not require any intervention in appeal. The appeal is without any merit and it is accordingly dismissed affirming the award passed by the Tribunal. (K. KANNAN) JUDGE August 16, 2010 Pankaj*