First Appeal No.250 of 1996

21st July, 2009

Petitioner Counsel: Shri. S. S. CHAPALGAONKAR
Respondent Counsel: Shri. P. R. TANDALE,Shri. S. V. WARAD

Cases Cited:
National Insurance Co. Ltd. Vs. Swaran Singh, 2004(5) ALL MR 251 (S.C.)=(2004)3 S.C.C. 297 [Para 17]
Minu B. Mehta Vs. Balkrishna Ramchandra Nayan, AIR 1977 S.C. 1248 [Para 18,19]
New India Assurance Company Limited Vs. Prabhu Lal, 2008 ALL SCR 1 : (2008)1 S.C.C. 696 [Para 20]
United India Insurance Co. Ltd. Vs. Pritpal Singh, (1996-2)113 Punj.L.R. 49 [Para 23]
National Insurance Co. Ltd. Vs. Cholleti Bharatamma, 2008(1) ALL MR 436 (S.C.)=(2008)1 S.C.C. 423 [Para 24]
Ramashray Singh Vs. New India Assurance Co. Ltd., AIR 2003 S.C. 2877 [Para 25]
United India Insurance Co. Ltd. Vs. Sarjerao, AIR 2008 S.C. 460 [Para 25]
P. P. Prabhakaran Vs. James, 2008(6) ALL MR (JOURNAL) 35 [Para 26]
M/s. Traders Pvt. Ltd. Vs. Smt. Sunanda wd/o. Krishna Machivale, 2008(5) ALL MR 757 [Para 27]
Rajendra Raghunath Girme Vs. Pramila Dattu Surse (Kumari), 2002(2) ALL MR 299=2002(3) Bom.C.R. 305 [Para 28]

JUDGMENT

JUDGMENT :- This is an appeal preferred by the insurance company being aggrieved by the judgment and decree passed by the District Judge and Ex-Officio Member of Motor Accident Claims Tribunal, Latur, in M.A.C.P. No.205 of 1992, decided on 19.12.1995.

2. Brief facts giving rise to this appeal may be stated as below :-

Present respondent Nos.1 to 5 are original claimants and they filed the claim petition for compensation in respect of death of Niwarti Bande, who was husband of respondent No.1 and father of respondent Nos.2 to 5. It is case of respondent Nos.1 to 5 that Niwarti Bande was a a labourer of about 36 years of age. He was earning Rs.1,000/- per month. On 12.04.1992 at about noon deceased Niwarti Bande, P.W.2 - Dattatray Bande, one Bandu and Madhav had gone to village Tiruka, Tal. Udgir for loading manure of one Govind Tidke. The work was taken by said four persons for Rs.75/- per trip. The manure was being transported in the tractor trolley owned by respondent No.7 who was original opponent No.2. The tractor trolly was being driven by respondent No.6. The tractor was bearing No.MYI-3751 and the trolly was bearing No.MYI-3752. The tractor and the trolly were insured with the appellant insurance-company. It is further case of the claimants that on 12.04.1982 at about noon time near bus stop of village Tiruka, the tractor trolly was being driven rashly and negligent by respondent No.6. As a result, the trolly was disconnected from the tractor and tilted on its side and Niwarti Bande was thrown on the ground from the trolly and died on the spot due to the injuries sustained by him. Respondent Nos.1 to 5 stated that they are entitled to claim compensation of Rs.3,38,000/-, but restricted to claim of Rs.1,00,000/-.

3. The claim was resisted by all the respondents who filed separate written statements. Respondent Nos.6 & 7 denied that the tractor was driven rashly or negligently or Niwarti was travelling in the trolly at the relevant time. However, it was admitted that cow dung (manure) was loaded in the trolly and was being taken to the field of respondent No.7. It was also denied that deceased Niwarti was servant of respondent No.7. It is stated that tie-pin which joined tractor and trolly was broken and as a result the accident had taken place. The trolly fell on its side and at that time the deceased, who was walking by the side of the trolly, came under the trolly and died.

4. The appellant insurance company stated that there was breach of policy in as much as deceased Niwarti and others were carried in the trolly which was not permitted. Moreover, the driver of the tractor was not holding valid and effective driving licence at the relevant time and there was no fitness certificate concerning the vehicle. The age and income of the deceased were denied.

5. The Tribunal came to the conclusion that the accident had taken place due to rash and negligent driving of the vehicle. No specific issue regarding breach of the policy or regarding licence was framed, though defences taken by insurer were discussed. The deceased was getting Rs.1,000/- per month as wages. So, dependency was considered at Rs.700/- per month. For the age of 40, the multiplier is considered as 13. Total compensation of Rs.1,20,000/- inclusive of N.F.L. Was awarded.

6. At the time of arguments before me it is the breach of the policy which is vehemently argued before this Court. It is argued that the Tribunal did not given proper consideration to the facts and circumstances of the case. Though owner/respondent No.7 produced copy of licence of respondent No.6, since it was not produced by the insurance company, it was not taken into consideration. It was also observed that the tractor was light motor vehicle and therefore driving licence produced cannot be said to be invalid. The Trial Court referred to certain decisions in para 10 of its judgment. It is argued that though tractor is light motor vehicle, but when tractor is accompanied with trolly, it would not be mere light motor vehicle, but it would be a goods tractor and therefore a transport vehicle and licence could not be said to be valid. The Tribunal did not accept this argument and ultimately passed the order of compensation against all opponents.

7. So far as driving licence of respondent No.6 is concerned, along with list Exh.39, some documents are produced by respondent No.7. He produced xerox copies of policy, cover note, driving licence of respondent No.6 and intimation of the accident to the insurer. During hearing of this appeal, the advocate of the appellant and advocates for respondent Nos.1 to 5 and 7 admitted all documents produced with list Exh.39 and therefore we can take into consideration those documents. The learned advocate of respondent Nos.1 to 5 and 7 wanted the Court to consider copy of insurance policy produced at Exh.37/1, as there is mention of payment of Rs.15 as additional premium "for L.L. To persons employed in connection with the operation and/or loading unloading of Motor Vehicle - IMT 17". The insurance policy shows that it is policy of both the tractor and the trailer involved in the accident. The policy includes all terms and conditions therewith. At Exh.39/4 there is copy of the driving licence of respondent No.6. First page shows name of respondent No.6 and his photograph and second page shows that the licence was in respect of light motor vehicle valid from 06.08.1981 to 05.04.2012.

8. So far as actual incident is concerned, there is death certificate produced with list Exh.4/1, which shows that the cause of death was 'cardio respiratory arrest secondary to hemorrhage and multiple injuries to the chest & shoulder'. There are also spot panchanama, inquest panchanama and F.I.R. As per certified copy of the F.I.R. which was lodged by respondent No.2 Vasant Niwarti Bande against respondent No.6 on same day, it is stated therein that deceased Niwarti and other labourers were traveling in the tractor-trolly and it was driven rashly and negligently. As a result the trolly fell on its side and deceased Niwarti came under the trolly and died on the spot.

9. As oral evidence, respondent No.1 Sushila is examined at Exh.36. She was not witness to the incident, but she stated that her husband was working on the tractor-trolly belonging to respondent No.7. A contract of transport of manure was taken by deceased Niwarti and other three persons. She did say that Niwarti was sitting in the trolly, but it is observed by the Tribunal that she was not eye-witness.

10. At Exh.37 there is evidence of P.W.2-Dattatray Bande who was accompanying deceased Niwarti and he said that they had taken work of loading and unloading manure and they were to get Rs.75/- per trip. Madhav was sitting on the tractor and rest of them including deceased Niwarti were sitting in the trolly. Tie-pin of the tractor-trolly was broken near the bridge of Tiruka and the tractor turned turtle. The tractor was going fast on descending the slope. The trolly fell on its side. Niwarti came under it. In cross-examination there is only suggestion that Niwarti was not sitting in the trolly, but there is no reason to disbelieve the story. There is no evidence to show that deceased was walking by the side of the trolly when the trolly fell on its side.

11. It is argued before this Court on behalf of the appellant that firstly there is breach of policy in as much as coollies were carried in the trolly loaded with manure which in-fact amounts to carrying persons unauthorizedly in a transport vehicle. The insurance company is not liable. The accident occurred not due to mechanical break down, but due to rash and negligent driving. The driver had no valid driving licence. Several authorities are cited by both sides.

12. It is necessary to note that though certain certified copies are produced with list Exh.4 and copies of some other documents are produced with list Exh.39 as referred to above, other parties were not called upon either to admit or deny them. In-fact, this should be done before recording of oral evidence begins. As things stood none of the documents produced with lists at Exh.4 or Exh.39 was either admitted or denied or proved, though parties wanted to rely on the same at the time of arguments. The learned Member of the Motor Accident Claims Tribunal ought to have taken necessary precautions for calling upon the parties either to admit or deny the documents, so that admitted documents could be accepted in evidence and exhibited and rest would need proof of trial, unless otherwise they are admissible in evidence automatically. Be that as it may.

13. At the cost of repetition it may be noted that no oral evidence is led by any of the defendants. As a result of evidence of P.W.2-Dattatray Bande as to how the accident had occurred has remained unchallenged. Respondent No.6 though was present at the time of incident, did not think it proper to enter into the witness box to explain how the accident had occurred and whether the deceased was walking by the side of the trolly or was sitting in the trolly as claimed by the claimants and as mentioned in the certified copy of the F.I.R., and as stated in the evidence of P.W.2-Dattatray. Respondent No.7 - owner also did not lead any evidence. He only produced certain documents with list Exh.39, which are now admitted by the appellant and respondent Nos.1 to 5 and 7 before this Court.

14. In the facts and circumstances of the case it is thus proved that deceased Niwarti was travelling by sitting in the trolly at the time of the accident. It is not proved that he was walking by the side of the trolly as stated in the written statement.

15. As stated earlier in the copy of insurance policy produced with Exh.39, premium of Rs.15/- was paid for "persons employed in connection with the operation and/or loading and unloading of motor vehicle-IMT 17". In the conditions accompanying policy in Section II - "Liability To Third Parties" proviso (b) is relied upon by the learned advocate for the insurance company and it is that - "Subject to limits of liability as laid down in the Schedule the Company will indemnify the insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of death or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle, except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988 the Company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of an in the course of such employment".

16. So far as relationship of deceased Niwarti and respondent No.7 is concerned, the relationship is unclear. If we are to go by evidence of P.W.2 Dattatray Bande at Exh.27, it means that four workers namely P.W.2-Dattatray, deceased Niwarti, Khandu and Madhav had taken contract of loading and unloading for Rs.75/- per trip. So, it is not proved that deceased Niwarti was in the employment of respondent No.7.

17. In the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004)3 S.C.C. 297 : [2004(5) ALL MR 251 (S.C.)], it is laid down in para 84 that the motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. However, in case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical fault or vis major, the insurer cannot avoid liability. In para 89 various types of vehicles defined under the Motor Vehicles Act are described and after referring to various definitions it is observed that in each case on evidence laid before the Tribunal a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. In para 110 (iii) it is held that to avoid liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.

18. In the case of Minu B. Mehta and anr. Vs. Balkrishna Ramchandra Nayan and anr., AIR 1977 S.C. 1248, the following principle of law is laid down :

"12. .................... We have also no hesitation in rejecting the testimony of the defence that there was some mechanical defect which resulted in the tie rod end breaking. We find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert destroys the plea of any mechanical defect set up by them. In this connection we may also point out that in order to succeed in a defence that the accident was due to a mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition. No such attempt was made to establish that all necessary precautions were taken to keep the lorry in a roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners.

13. In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care. ......................"

19. In this case tie pin which connected the tractor with the trolly was easily visible and could easily be checked from time to time. There is no evidence to show that necessary precaution was taken and inspite of that the tie pin had broken. Moreover, it has come in the evidence of P.W.2-Dattatray that there was slope and on the descending slope the tractor was driven in high speed. As a result the accident had occurred. So, in this case the accident had occurred due to rash and negligent driving. Necessary burden as laid down in the case of Minu B. Mehta (Supra) is not discharged by present respondents.

20. In the case of New India Assurance Company Limited Vs. Prabhu Lal, (2008)1 S.C.C. 696, the driver was having valid licence to ply only light motor vehicle. There was no endorsement on the licence authorizing him to drive the transport vehicle. Under the circumstances, it was held that insurer is not liable to pay compensation. In that case in para 38 the Supreme Court laid down that Section 3 required the driver to have an endorsement which would entitle him to ply transport vehicle. In para 43 their Lordships considered Section 14(2) of the Motor Vehicles Act and observed that if a licence is issued or renewed in respect of transport vehicle, it can be done only for a period of three years. But in case of any other vehicle, such issuance or renewal can be for twenty years provided the person in whose favour licence was issued or renewed had not attained the age of 50 years. On same analogy we can say that respondent No.6 was not authorized to drive transport vehicle. In this case licence of respondent No.6 was renewed for 20 years. In paras 44 and 45 it is laid down that since the taxi is a public service vehicle, the driver in whose favour the licence is issued to ply light motor vehicle would not be entitled to drive taxi. In this case, it was a tractor-trolly.

21. Some of the definitions needs to be reproduced from Section 2 of the Motor Vehicles Act, 1988. They are Section 2(14) - "goods carriage", Section 2(21) - "light motor vehicle", Section 2(39) - "semi-trailer", Section 2(44) - "tractor" and Section 2(47) - "transport vehicle". Those definitions are as follows :-

"2(14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods."

"2(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms."

"2(39) "semitrailer" means a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is super-imposed on, and a part of whose weight is borne by, that motor vehicle."

"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."

"2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle."

22. Though the tractor alone would be a light motor vehicle, the tractor-trolly would be a goods carriage vehicle within the meaning of Section 2(14) of the Motor Vehicles Act. In this case, the trolly attached to the tractor was actually used for transport of manure and thus the vehicle was adopted and used for carriage of goods.

23. The Division Bench of Punjab and Haryana High Court in United India Insurance Company Limited Vs. Pritpal Singh, (1996-2)113 Punj.L.R. 49, held that the tractor trolly together constitutes a transport vehicle.

24. In National Insurance Co. Ltd. Vs. Cholleti Bharatamma and Ors., (2008)1 S.C.C. 423 : [2008(1) ALL MR 436 (S.C.)], in para 19 it is laid down that owners of goods means only persons who travels in the cabin of vehicle. In this case, coolies were carried on the heap of manure loaded in the trolly driven by the tractor. In that case it is held that traveling with the goods itself does not entitle any one to protection under Section 147 of the Motor Vehicles Act. Owner must travel only in the cabin of the vehicle and not with the goods.

25. In Ramashray Singh Vs. New India Assurance Co. Ltd. and ors., AIR 2003 S.C. 2877, it is laid down that the words "any person" and "any passenger" occurring in Section 147 though are of wide amplitude, do not cover employees other than those mentioned in proviso to sub-section (b). Their Lordship considered meaning of "Comprehensive Insurance Policy" and it is stated that it does not cover all third party risks, but only covers person or classes of persons specified in the policy. In this case nobody was authorised to travel in the trolly and risk of persons traveling in the trolly is not covered by the policy. Premium of Rs.15/- was paid for persons employed in connection with the operation and/or loading unloading of Motor Vehicle. In other words, if while loading, unloading trolly or while operating the tractor, if any injury or death occurred, the insurance company is liable. The matter is further made clear in the case of United India Insurance Co. Ltd. Vs. Sarjerao and Ors., AIR 2008 S.C. 460. In para 8 following observations are made :

"So far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Limited Vs. Brij Mohan and Ors., (2007(7) SCALE 753) and it was held that the Insurance Company has no liability. In view of the aforesaid two decisions of this Court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matters afresh in the light of what has been stated by this Court in Smt. Yallwwa's Case (supra) and Brij Mohan's case (supra)."

26. The learned advocate for the respondent cited case of P. P. Prabhakaran Vs. James & Ors., 2008(6) ALL MR (JOURNAL) 35 of Kerala High Court, in which after referring to Section 2(21) of the Motor Vehicles Act, which is definition of "light motor vehicle", it is held that the tractor is a light motor vehicle. However, here the tractor was attached to trolly and was drawing the trolly; and the tractor-trolly together forms a transport vehicle as discussed above.

27. The learned advocate for the respondent also referred to case of M/s. Traders Pvt. Ltd. & Anr. Vs. Smt. Sunanda wd/o. Krishna Machivale & ors., 2008(5) ALL MR 757. The Division Bench of this Court has considered entire case-law till date and while considering Section 95 of the Motor Vehicles Act, 1939, held that the section dealt with exemption with reference to nature of vehicle and not with reference to persons carried in the vehicle. It is observed that proviso limits liability of insurer to the extent that would arise under the Workmens Compensation Act, in respect of driver, conductor or ticket examiner and those who are carried in a goods carriage. Here I may refer to paras 38 to 39.

28. In the case of Rajendra Raghunath Girme Vs. Pramila Dattu Surse (Kumari) & Ors., 2002(3) Bom.C.R. 305 : [2002(2) ALL MR 299] was cited for proposition that it is for the insurer to prove by positive evidence that driver had no licence. In this case, as discussed earlier, copy of licence is produced on record by respondent No.7 and it is now admitted by all contesting parties during hearing of the appeal.

29. Considering the case-laws discussed above and the facts of this case it is clear that the accident had occurred due to rash and negligent driving of the tractor which was drawing trolly and it was fully loaded with manure and was being driven in a high speed on slope without giving necessary attention to the attending circumstances. So, it is not proved that the accident was due to mechanical defect. Assuming for a moment that there was breakage of the tie-pin, still it was not something which could not have been easily detected by the owner or the driver. No evidence is led to prove that there was any latent defect which caused the accident. In absence of any evidence, it cannot be said that the accident had taken place due to mechanical defect. The driving licence of respondent No.6, the copy of which is produced by respondent No.7, clearly indicates that respondent No.6 was authorised to drive light motor vehicle but not the tractor trolly used as goods carriage vehicle. So, there is breach of terms and conditions of policy. Respondent No.6 driver was not authorized to drive the tractor-trolly used to transport manure though he was authorized to drive only tractor. There is also breach of condition in as much as persons were carried on the heap of manure in the trolly which was goods carriage vehicle. So, there was breach of policy and so the appellant is not liable to pay compensation. As such this appeal deserves to be allowed.

30. In the result, this appeal is allowed to the extent of the appellant. The order dated 19.12.1995 passed by the Motor Accident Claims Tribunal, Latur, is hereby set aside to the extent of appellant only and it is confirmed as against respondent Nos.6 & 7, who are driver and owner respectively of the tractor trolly. If any amount is deposited by the appellant and lying with the Court, it may be withdrawn by the appellant. If any amount is already paid by the appellant insurance company to respondent Nos.1 to 5 (claimants) then appellant is entitled to recover same from respondent No.7 - Dr. Bhimrao Shivram Male. Respondent Nos.1 to 5 are entitled to recover balance compensation (excluding already paid) as awarded by the Tribunal from respondent Nos.6 & 7 in this appeal. Respondent Nos.6 & 7 to pay costs of the appellant and respondent Nos.1 to 5 of this appeal and bear their own.

31. The First Appeal is accordingly disposed of.

Appeal allowed.