Rajasthan High Court – Jodhpur
U.I.Ins.Co.Ltd vs Smt.Pushpa @ Munni And Ors on 12 September, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:37048]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1695/2016
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, T.P. Claims
Hub, 74-A, Bhati N-Plaza, Pal Road, Jodhpur
----Appellant
Versus
1. Jayantilal s/o Shankarlal Mochi, resident of Mochi Bazar,
Kherwara, District Udaipur.
----Respondent Claimant
2. Kantilal Katara, s/o Shri Bhimji, resident Nalwa Phala
Lodhan, P.S. Sadar, Tehsil & District Dungarpur
----Respondent Driver
3. Smt. Champa Devi w/o Shri Somaji Kharadi.
4. Devilal s/o Shri Somaji Kharadi
5. Manilal s/o Shri Somaji Kharadi
6. Banshilal s/o Shri Somaji Kharadi
All residents of Adarsh Nagar, Dungarpur
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 1801/2012
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, Divisional
Office, 12-D Residency Road, Jodhpur
----Appellant
Versus
1. Laxman s/o Shri Haliya Menat, resident of village Nalwa,
P.S. Sadar, Tehsil and District Dungarpur.
----Respondent Claimant
2. Kantilal, s/o Shri Bhimji, resident Nalwa Phala Lodhan, P.S.
Sadar, Tehsil & District Dungarpur
----Respondent Driver
3. Raju Kharadi s/o Shri Soma Kharadi, resident of
Adarshnagar, Dungarpur
----Respondent Owner
S.B. Civil Misc. Appeal No. 1816/2012
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, Divisional
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Office, 12-D Residency Road, Jodhpur
----Appellant
Versus
1. Smt. Pushpa @ Munni w/o Late Sanjay Kumar.
2. Mst. Rajni d/o Late Sh. Sanjay Kumar (minor).
3. Mst. Kajal d/o Late Sh. Sanjay Kumar (Minor).
4. Mst. Megna d/o Late Sh. Sanjay Kumar (Minor).
Minors are represented through their Natural Guardian
Mother, Smt. Pushpa @ Munni
5. Smt. Sharda w/o Shri Shankarlal.
6. Shri Shankarlal s/o Shri Nathu Ji
All residents of Ajmeri Mohalla, near Baba Ramdeo Mandir,
Kherwara, District Udaipur.
----Respondnet Claimants
7. Kantilal, s/o Shri Bhimji, resident Nalwa Phala Lodhan, P.S.
Sadar, Tehsil & District Dungarpur
----Respondent Driver
8. Smt. Champa Devi w/o Shri Somaji Kharadi.
9. Devilal s/o Shri Somaji Kharadi
10. Manilal s/o Shri Somaji Kharadi
11. Gopal s/o Shri Somaji Kharadi
12. Banshilal s/o Shri Somaji Kharadi.
13. Raju s/0 Shri Somaji Kharadi.
All residents of Adarsh Nagar, Dungarpur
----Respondent
S.B. Civil Misc. Appeal No. 1853/2012
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, Divisional
Office, 12-D Residency Road, Jodhpur
----Appellant
Versus
1. Smt. Rukmani Devi w/o Late Shri Chabilal Mochi, r/o Mochi
Bazar, Kherwara, District Udaipur.
2. Smt. Jasoda d/o Late Shri Chabilal w/o Shri Mahesh, r/o
Dungarpur.
3. Smt. Santosh d/o Late Shri Chabilal w/o Shri Vishnu ji
Mochi, r/o Aaspur, District Dungarpur.
4. Smt. Seema, d/o Late Shri Chabilal w/o Shri Rajesh ji
Mochi, r/o Udaipur.
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5. Mst. Sapna d/o Late Shri Chabilal Mochi.
6. Govind s/o Late Shri Chabilal Mochi
Both r/o Mochi Bazar, Kherwara District, Udaipur
7. Smt. Laxmi d/o Late Shri Chabilal Mochi w/o Shri Bharat
Lal r/o Dungarpur
----Respondent Claimants
8. Kantilal, s/o Shri Bhimji, resident Nalwa Phala Lodhan, P.S.
Sadar, Tehsil & District Dungarpur
----Respondent Driver
9. Smt. Champa Devi w/o Shri Somaji Kharadi.
10. Devilal s/o Shri Somaji Kharadi
11. Manilal s/o Shri Somaji Kharadi
12. Gopal s/o Shri Somaji Kharadi
13. Banshilal s/o Shri Somaji Kharadi.
14. Raju s/0 Shri Somaji Kharadi.
All residents of Adarsh Nagar, Dungarpur
----Respondent
S.B. Civil Misc. Appeal No. 1694/2016
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, T.P. Claims
Hub, 74-A, Bhati N-Plaza, Pal Road, Jodhpur
----Appellant
Versus
1. Natwarlal s/o Shankarlal Mochi, resident of Behind Ramdev
Temple, Kherwara, District Udaipur.
----Respondent Claimant
2. Kantilal, s/o Shri Bhimji, resident Nalwa Phala Lodhan, P.S.
Sadar, Tehsil & District Dungarpur
----Respondent Driver
3. Smt. Champa Devi w/o Shri Somaji Kharadi.
4. Devilal s/o Shri Somaji Kharadi
5. Manilal s/o Shri Somaji Kharadi
6. Gopal s/o Shri Somaji Kharadi
7. Banshilal s/o Shri Somaji Kharadi.
8. Raju s/0 Shri Somaji Kharadi.
All residents of Adarsh Nagar, Dungarpur
----Respondent
For Appellant(s) : Mr. Jagdish Vyas for the Insurance
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Company
For Respondent(s) : Mr. Pradeep Shah with
Ms. Geeta Panpaliya for the owner
and driver of the tractor-trolley
Mr. Bharat Singh Rathore for the
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
Reserved on: 06/09/2024
Pronounced on: 12/09/2024
1. The present misc. appeals have been filed by the appellant-
Insurance Company, under Section 173 of the Motor Vehicles Act,
1988 (‘MV Act’) assailing the award passed by the learned Judge,
Motor Accident Claims Tribunal, Dungarpur, (‘Tribunal’) vide order
dated 30.05.2012 in MAC Case No. 279/2009 and 278/2009;
12.04.2016 in MAC Case No. 18/2012 and 19/2012; and
27.04.2012 in MAC Case No. 270/2009, whereby the learned
Tribunal has allowed the claim filed by the respondent-claimants
and the appellant-Insurance Company has been held liable for the
same.
2. The civil misc. appeals, S.B. Civil Misc. Appeal No.
1695/2016, S.B. Civil Misc. Appeal No. 1801/2012, S.B. Civil Misc.
Appeal No. 1816/2012, S.B. Civil Misc. Appeal No. 1853/2012 and
S.B. Civil Misc. Appeal No. 1694/2016 are being decided by this
common order, however, facts of S.B. Civil Misc. Appeal No.
1853/2016 are illustratively taken for consideration.
3. Briefly stated, the facts of the case are that the husband of
respondent no.1/claimant, Late Chabbilal was going with Late
Sanjay Kumar, Jayantilal and Natwarlal from Dungarpur to
Kherwara on 12.04.2009 on a motorcycle bearing number RJ-27-
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SD-3463, when a tractor coming from Kherwara, bearing number
RJ-12-R-1182 collided with the motorcycle near Vagdari Bus Stand
at 9:30 p.m. and subsequently, Sanjay Lal and Chabbilal died and
respondent no. 1 along with Natwarlal suffered injuries.
Thereafter, a claim was filed by the claimants before the learned
Tribunal wherein the respondent driver and owner though
remained present but did not file their reply.
4. In its reply to the claim petition filed by the respondent
claimants in MAC Case No. 279/2009 and 278/2009 along with
12.04.2016 in MAC Case No. 18/2012 and 19/2012, the appellant-
Insurance Company submitted that the driver of the motorcycle,
i.e. Late Sanjay Kumar was driving the said vehicle, after
consuming liquor and also, at the time of accident there were four
people sitting on the said vehicle. It was also submitted in the
reply to the claim petition that the driver of the tractor-trolley was
not having a valid and effective driving license at the time of the
accident and therefore, the appellant-Insurance Company cannot
be held liable in the case of clear violations of the conditions of the
Insurance Policy. It was further submitted in the reply to the claim
petition that the offending vehicle, i.e. the tractor-trolley had been
insured with the appellant-Insurance Company under a “Farmers’
Package Policy” which strictly limited the use of the insured vehicle
to agricultural purposes only, however the offending vehicle at the
time of the accident was being used for commercial purposes and
therefore, the liability of the appellant-Insurance Company does
not arise.
5. In support of the claim petition, the respondent/claimants
exhibited 52 documents along with examining 3 witnesses, and
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the appellant-Insurance Company examined the Assistant
Manager, United India Insurance Company, Dungarpur, Mr. K.S.
Pandya (NAW1).
6. After hearing the parties, the learned Tribunal framed 4
issues including relief in MAC Case No. 18/2012 and 19/2012,
wherein the respondent/claimant no. 1 suffered injuries, the
issues thereto are as follows:
“1- आया अप्रार्थी संख्या 1 कांतिलाल ट्रेक्टर चालक ने दिनांक 12.04.2009 को
समय करीब रात्रि 9.30 पी.एम. पर मौजा वाग्दरी बस स्टेण्ड पर वाहन ट्रेक्टर नं०
आर.जे.-12/आर.-1182 मय ट्रोली नं० आर.जे.-12/ई.-0834 जिसकी एक लाईट
बंद हालत में तेजगति व उतावलेपन से चलित कर रोड की गलत साईड में आकर
मोटर साईकिल नं० आर.जे.-27/ एस.डी.-3463 के टक्कर मार दी जिससे प्र०सं०
18/12 में प्रार्थी जयन्तिलाल व प्र०सं० 19/12 में प्रार्थी नटवरलाल दोनों के शरीर
पर गंभीर एवं साधारण प्रकृ ति की उपहतियाँ कारित हुई ?
– प्रार्थीगण-
2- आया अप्रार्थी सं० 8 द्वारा अपने लिखित अभिकथनों की प्रारम्भिक आपत्तियों
एवं विशेष कथनों के मध्यनजर एवं अप्रार्थी सं० 1 से 7 तक अपने दायित्व से
मुक्त हो सकते है नहीं तो इसका प्रभाव क्या होगा ?
– अप्रार्थी सं० 8-
3- क्या प्रार्थीगण क्षतिपूर्ति राशि प्राप्त करने के अधिकारी है तो किस अप्रार्थी से
कितनी-कितनी राशि प्राप्त करने के अधिकारी है ?
– प्रार्थीगण-
4- अनुतोष ।”
7. The learned Tribunal framed 4 issues including relief in MAC
Case No. 279/2009 and 278/2009, wherein the husband of
respondent/claimant no. 1 died, the issues thereto are as follows:
“1 आया प्रश्नगत वाहन ट्रेक्टर सं० आरजे-12/आर-1182 मय ट्राली नं० आरजे-
12/ई-0834 के चालक विपक्षी सं० 1 द्वारा दिनांक 12.04.2009 को रात्रि 9.30
बजे डूंगरपुर से खेरवाड़ा जाने वाले मुख्य मार्ग पर वागदरी बस स्टैण्ड से थोड़ा
आगे उक्त चालक द्वारा उक्त वाहन ट्रेक्टर मय ट्रॉली तेजगति उतावलेपन से
चलाकर लाया और मोटरसाईकिल सं० आरजे-27/एसडी-3463 को गलत साईड में
आकर टक्कर मारदी, जिससे मोटरसाईकिल पर सवार संजय एवं छबीलाल के
शरीर पर गंभीर प्रकृ ति की चोटें आने से उनकी मृत्यु हो गई ?
2 आया विपक्षी सं०-8 बीमा कम्पनी द्वारा अपने जबाव में अंकित तथ्यों एवं
विशेष कथन के तथ्यों के अनुसार क्या वह अपने दायित्व से मुक्त हो सकती हैं,
यदि नहीं, तो इसका क्या प्रभाव होगा ?
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3 आया प्रार्थीगण अपने प्रार्थना पत्र में वर्णित प्रतिकर की राशि प्राप्त करने के
अधिकारी है? यदि हां तो किस-किस विपक्षी से कितनी-कितनी राशि प्राप्त करने
के अधिकारी हैं ?
4 आया दीगर अनुतोष क्या होगी ?”
8. The learned Tribunal framed 4 issues including relief in MAC
Case No. 270/2009, wherein the respondent/claimant no. 1
suffered injuries, the issues thereto are as follows:
“1 आया प्रश्नगत वाहन ट्रेक्टर नं० आरजे-12/आर-1182 के चालक विपक्षी सं० 1
द्वारा दिनांक 12.04.2009 को रात्रि करीब 9.30 पीएम पर वागदरी से डूंगरपुर की
ओर जाने वाले मुख्य मार्ग पर वागदरी बस स्टैण्ड से आगे उक्त चालक द्वारा उक्त
वाहन ट्रेक्टर को तेजगति. गफलत एवं लापरवाही से चलाकर साईड में चल रही
मोटरसाईकिल को टक्कर मारदी, जिससे ट्रेक्टर में सवार प्रार्थी के नीचे गिर जाने
से उसके शरीर पर गंभीर एवं साधारण चोटें आई ?
2 आया विपक्षी सं० 3 बीमा कम्पनी द्वारा अपने जवाब में अंकित तथ्यों एवं
अतिरिक्त उत्तर के तथ्यों के अनुसार वह अपने दायित्व से मुक्त हो सकती है, यदि
नहीं तो इसका क्या प्रभाव होगा ?
3 आया प्रार्थी अपने प्रार्थना पत्र में वर्णित प्रतिकर की राशि प्राप्त करने का
अधिकारी है ? यदि हां तो किस-किस विपक्षी से एवं कितनी-कितनी राशि प्राप्त
करने का अधिकारी है ?
4 आया दीगर दादरसी क्या होगी ?”
9. After hearing the parties, the learned Tribunal in MAC Case
No. 18/2012 and 19/2012 came to a conclusion that the claimant,
Jayantilal had suffered four simple injuries and the claimant,
Natwarlal had suffered one grievous and three simple injuries
along with 6% permanent disability and awarded Rs. 19,667/- and
Rs. 55,694/- respectively, vide judgment and award dated
12.04.2016. Furthermore, learned Tribunal in MAC Case No.
279/2009 and 278/2009 awarded Rs. 9,89,600/- and Rs.
4,52,400/- respectively, while deciding the claim presented by the
claimants for the death of Late Sanjay Kumar and Late Chabbilal
respectively, vide judgment and award dated 30.05.2012. Also, in
MAC Case No. 270/2009, the learned Tribunal came to the
conclusion that the claimant, Laxman suffered one simple and one
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grievous injury along with 10% permanent disability and awarded
Rs. 56,500/-, vide the judgment and award dated 27.04.2012.
10. Thus, aggrieved of the judgment and awards dated
12.04.2016, 30.05.2012 and 27.04.2012, the appellant-Insurance
Company has preferred the present misc. appeals.
11. Learned counsel for the appellant-Insurance Company
submitted that there was a blatant violation of the conditions in
the Insurance Policy as well as the law, inasmuch as the husband
of the respondent-claimant no. 1 along with Late Sanjay Kumar,
Natwarlal and Jayantilal were travelling on the motorcycle which
has a seating capacity of two people only. He further submitted
that the driver of the motorcycle, Late Sanjay Kumar had
consumed liquor and was under the influence of alcohol while
driving the said vehicle and therefore, the accident occurred on
account of the said negligent act of Late Sanjay Kumar and thus,
the learned Tribunal has erred in imposing the liability on the
appellant-Insurance Company to grant compensation for the death
of husband of respondent/claimant no. 1 and Late Sanjay Kumar
along with the injuries suffered by Mr. Natwarlal and Mr. Jayantilal,
when the driver of the motorcycle himself was under the influence
of alcohol and thus, negligent while driving the said vehicle.
12. Learned counsel for the appellant-Insurance Company
further submitted that the learned Tribunal has also erred in
awarding compensation to the respondent/claimant no. 1 in the
MAC Case No. 270/2009 decided vide judgment dated
27.04.2012, inasmuch as the claimant therein was sitting on the
insured vehicle, i.e. the tractor-trolley at the time of the accident
and while taking into consideration the Insurance Policy, he
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submitted that the risk of such an occupant was not covered. He
thus submitted that in such circumstances and taking into
consideration the fact that no premium had been charged towards
the said occupant, the appellant-Insurance Company cannot be
held liable to compensate for the injuries suffered by an occupant
and thus, the learned Tribunal has erred in imposing the liability
upon the appellant-Insurance Company.
13. Learned counsel for the appellant-Insurance Company also
submitted that upon perusal of the Site-Plan (Ex.24), it is clearly
seen that the width of the road was 18 feet and the accident
occurred when the offending vehicle was within 9 feet from the
other end of the road, and thus, it is a clear case of negligence on
part of the driver and in presence of the same, the appellant-
Insurance Company cannot be held liable.
14. Learned counsel for the appellant-Insurance Company also
relied upon the judgment passed by the Hon’ble Apex Court in the
case of Oriental Insurance Co. Ltd. v. Brij Mohan and Ors.
reported in AIR 2007 SC 1971, wherein it has been observed
that the liability cannot fall upon the Insurance Company in case
of a passenger travelling in a goods vehicle and that the Hon’ble
Apex Court had directed the Insurance Company to satisfy the
award, only while exercising the power under Article 142 of the
Constitution of India. The relevant paras are reproduced as under:
“10. Furthermore, respondent was not the owner of the
tractor. He was also not the driver thereof. He was merely a
passenger travelling on the trolley attached to the tractor.
His claim petition, therefore, could not have been allowed
in view of the decision of this Court in New India Assurance
Co. Ltd. v. Asha Rani and Ors. MANU/SC/1105/2002 :
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AIR2003SC607 wherein the earlier decision of this Court in
New India Assurance Co. v. Satpal Singh
MANU/SC/0751/1999 : AIR2000SC235 was overruled. In
Asha Rani (supra) it was, inter alia, held:
“25. Section 147 of the 1988 Act, inter alia, prescribes
compulsory coverage against the death of or bodily injury to any
passenger of “public service vehicle”. Proviso appended thereto
categorically states that compulsory coverage in respect of
drivers and conductors of public service vehicle and employees
carried in a goods vehicle would be limited to the liability under
the Workmen’s Compensation Act. It does not speak of any
passenger in a “goods carriage”.
26. In view of the changes in the relevant provisions in
the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that
the meaning of the words “any person” must also be attributed
having regard to the context in which they have been used i.e.
“a third party”. Keeping in view the provisions of the 1988 Act,
we are of the opinion that as the provisions thereof do not enjoin
any statutory liability on the owner of a vehicle to get his vehicle
insured for any passenger travelling in a goods vehicle, the
insurers would not be liable therefore.
27. Furthermore, Sub-clause (i) of Clause (b) of Sub-
section (1) of Section 147 speaks of liability which may be
incurred by the owner of a vehicle in respect of death of or
bodily injury to any person or damage to any property of a third
party caused by or arising out of the use of the vehicle in a
public place, whereas Sub-clause (ii) thereof deals with liability
which may be incurred by the owner of a vehicle against the
death of or bodily injury to any passenger of a public service
vehicle caused by or arising out of the use of the vehicle in a
public place.”
xxxx
13. However, respondent No. 1 is a poor labourer. He had
suffered grievous injuries. He had become disabled to a
great extent. The amount of compensation awarded in his
favour appears to be on a lower side. In the
aforementioned situation, although we reject the other
contentions of Ms. Indu Malhotra, we are inclined to
exercise our extraordinary jurisdiction under Article 142 of
the Constitution of India so as to direct that the award may
be satisfied by the appellant but it would be entitled to
realize the same from the owner of the tractor and the
trolley wherefore it would not be necessary for it to initiate
any separate proceedings for recovery of the amount as
provided for under the Motor Vehicles Act.
14. It is well settled that in a situation of this nature this
Court in exercise of its jurisdiction under Article 142 of the
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Constitution of India read with Article 136 thereof can issue
suit directions for doing complete justice to the parties.”
15. Learned counsel for the appellant-Insurance Company also
placed reliance upon the judgment passed by the Coordinate
Bench of this Court in the case of Bagdi Ram v. Indra Bai
[S.B.Civil Misc. Appeal No. 613/2020 decided on 04.09.2023]
wherein it has been observed that the Insurance Company had
been rightly absolved from its liability when the deceased was
sitting over the tractor and died by falling from the tractor, while
considering the FIR, Chargesheet and the Naksha Mauka and
there was no evidence produced by the appellants/claimants
therein to deny the said fact.
16. Learned counsel for the appellant-Insurance Company also
relied upon the judgment passed by the Coordinate Bench of this
Court at Jaipur, in the case of Babu Lal v. Kailash Bai [S.B. Civil
Misc. Appeal No. 4547/2019 decided on 03.05.2023] wherein it
has been observed that the Tribunal had rightly exonerated the
Insurance Company when the deceased was traveling in the
offending vehicle as a gratitious passenger and that, the offending
vehicle was not being used for agricultural purposes, at the time
of the accident, contrary to the purpose for which the offending
vehicle had been insured by the Insurance Company and thus, in
the present case too, inasmuch as the offending vehicle was not
being used for agricultural purposes at the time of accident,
learned cousnel for the appellant-Insurance Company submitted
that the learned Tribunal erred in imposing the liability upon the
appellant-Insurance Company in the present case. The relevant
para is reproduced as under:
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[2024:RJ-JD:37048] (12 of 24) [CMA-1695/2016]
“The Tribunal while deciding the claim petition exonerated
the Insurance Company on account of the fact that
deceased was traveling in the alleged vehicle as a
gratuitous passenger, whereas the alleged tractor was
insured for agricultural purposes. The Tribunal in its award
also mentioned that son of the deceased Chandra Prakash
lodged an FIR (Ex-1) in which he had clearly stated that
alleged tractor was attached with trolley, wherein 20-25
persons were sitting. The tractor along with trolley were
being used for procession of Barat. The Tribunal while
considering these facts clearly mentioned that Insurance
Company had not charged any premium for trolley in which
persons were traveling. So, in my considered opinion, the
Tribunal rightly came to the conclusion that the tractor and
trolley were not being used for agricultural purposes. So,
Insurance Company is not liable to pay compensation and
to recover the same from its owner. So, finding of the
Tribunal does not suffer from any illegality and infirmity.”
17. Learned counsel for the appellant-Insurance Company also
submitted that the learned Tribunal has erred in applying a higher
rate of interest in case of default made by the appellant-Insurance
Company, thus amounting to a penalty being imposed upon the
Insurer, in contrast to the judgment passed by the Hon’ble Apex
Court in the case of National Insurance Company Limited v.
Keshav Bahadur reported in AIR 2004 SC 1581. The relevant
paras of the judgment are reproduced as under:
“Though Section 110CC of the Act (corresponding to
Section 171 of the New Act) confers a discretion on the
Tribunal to award interest, the same is meant to be
exercised in cases where the claimant can claim the same
as a matter of right. In the above background, it is to be
judged whether a stipulation for higher rate of interest in
case of default can be imposed by the Tribunal. Once the
discretion has been exercised by the Tribunal to award
simple interest on the amount of compensation to be
awarded at a particular rate and from a particular date,(Downloaded on 17/09/2024 at 08:41:01 PM)
[2024:RJ-JD:37048] (13 of 24) [CMA-1695/2016]there is no scope for retrospective enhancement for
default in payment of compensation. No express or implied
power in this regard can be culled out from Section 110CC
of the Act or Section 171 of the new Act. Such a direction
in the award for retrospective enhancement of interest for
default in payment of the compensation together with
interest payable thereon virtually amounts to imposition of
penalty which is not statutorily envisaged and prescribed.
It is, therefore directed that the rate of interest as
awarded by the High Court shall alone be applicable till
payment, without the stipulation for higher rate of interest
being enforced, in the manner directed by the Tribunal.”
18. Per contra, learned counsel for the respondents/owner and
driver submitted that the offending vehicle, i.e. the tractor-trolley
had been insured under a “Farmer’s Package Policy” and therefore,
in the light of the judgment passed by the Hon’ble Apex Court in
the case of National Insurance Company Limited v
Balakrishnan reported in 2013 (1) SCC 731, even the
occupants are insured under a Pacakage/Comprehensive Policy
and therefore, the learned Tribunal has rightly imposed the liability
upon the appellant-Insurance Company. The relevant paras are
reproduced as under:
“21. In view of the aforesaid factual position, there is no
scintilla of doubt that a “comprehensive/package policy”
would cover the liability of the insurer for payment of
compensation for the occupant in a car. There is no cavil
that an “Act Policy” stands on a different footing from a
“Comprehensive/Package Policy”. As the circulars have
made the position very clear and the IRDA, which is
presently the statutory authority, has commanded the
insurance companies stating that a
“Comprehensive/Package Policy” covers the liability, there
cannot be any dispute in that regard. We may hasten to
clarify that the earlier pronouncements were rendered in
respect of the “Act Policy” which admittedly cannot cover a
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[2024:RJ-JD:37048] (14 of 24) [CMA-1695/2016]
third party risk of an occupant in a car. But, if the policy is
a “Comprehensive/Package Policy”, the liability would be
covered. These aspects were not noticed in the case of
Bhagyalakshmi (supra) and, therefore, the matter was
referred to a larger Bench. We are disposed to think that
there is no necessity to refer the present matter to a larger
Bench as the IRDA, which is presently the statutory
authority, has clarified the position by issuing circulars
which have been reproduced in the judgment by the Delhi
High Court and we have also reproduced the same.”
19. Learned counsel for the respondents/claimants submitted
that solely because there were four people traveling on a
motorcycle, does not prove that the driver of the motorcycle was
negligent while driving the said vehicle and therefore, the
contention of the learned counsel for the appellant-Insurance
Company is baseless. He also placed reliance upon the judgment
passed by the Hon’ble Apex Court in the case of Mohammed
Siddique & Anr. v. National Insurance Company Ltd. & Ors.
[Civil Appeal No. 79 of 2020 decided on 08.01.2020]. The relevant
paras of the judgment is reproduced as under:
“13. But the above reason, in our view, is flawed. The fact
that the deceased was riding on a motor cycle along with
the driver and another, may not, by itself, without anything
more, make him guilty of contributory negligence. At the
most it would make him guilty of being a party to the
violation of the law. Section 128 of the Motor Vehicles Act,
1988, imposes a restriction on the driver of a two-wheeled
motor cycle, not to carry more than one person on the
motor cycle. Section 194C inserted by the Amendment Act
32 of 2019, prescribes a penalty for violation of safety
measures for motor cycle drivers and pillion riders.
Therefore, the fact that a person was a pillion rider on a
motor cycle along with the driver and one more person on
the pillion, may be a violation of the law. But such violation(Downloaded on 17/09/2024 at 08:41:01 PM)
[2024:RJ-JD:37048] (15 of 24) [CMA-1695/2016]by itself, without anything more, cannot lead to a finding of
contributory negligence, unless it is established that his
very act of riding along with two others, contributed either
to the accident or to the impact of the accident upon the
victim. There must either be a causal connection between
the violation and the accident or a causal connection
between the violation and the impact of the accident upon
the victim. It may so happen at times, that the accident
could have been averted or the injuries sustained could
have been of a lesser degree, if there had been no violation
of the law by the victim. What could otherwise have
resulted in a simple injury, might have resulted in a
grievous injury or even death due to the violation of the
law by the victim. It is in such cases, where, but for the
violation of the law, either the accident could have been
averted or the impact could have been minimized, that the
principle of contributory negligence could be invoked. It is
not the case of the insurer that the accident itself occurred
as a result of three persons riding on a motor cycle. It is
not even the case of the insurer that the accident would
have been averted, if three persons were not riding on the
motor cycle. The fact that the motor cycle was hit by the
car from behind, is admitted. Interestingly, the finding
recorded by the Tribunal that the deceased was wearing a
helmet and that the deceased was knocked down after the
car hit the motor cycle from behind, are all not assailed.
Therefore, the finding of the High Court that 2 persons on
the pillion of the motor cycle, could have added to the
imbalance, is nothing but presumptuous and is not based
either upon pleading or upon the evidence on record.
Nothing was extracted from PW-3 to the effect that 2
persons on the pillion added to the imbalance.”
20. Learned counsel for the respondents/claimants submitted
that the judgment and awards so passed by the learned Tribunal
dated 12.04.2016, 30.05.2012 and 27.04.2012 are correct in law
and require no further interference by this Court.
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[2024:RJ-JD:37048] (16 of 24) [CMA-1695/2016]
21. Heard learned counsel for the parties, perused material
available on record and judgments cited at the Bar.
22. This Court, upon perusal of the record, finds that the Post-
Mortem Report of the deceased driver of the motorcycle, Late
Sanjay Kumar was missing and therefore, directed the appellant-
Insurance Company to submit a photocopy of the said Post-
Mortem Report (Ex.22). The photocopy of the Post-Mortem Report
(Ex.22) is thereby added to the Record. This Court now, observes
that firstly, Section 185 of the MV Act stipulates the penalty in
cases where a vehicle is being driven or an attempt is made to
drive the vehicle by a drunken person or a person who is under
the influence of drug; however the said provision simultaneously
also specifies such person to be having alcohol exceeding 30 mg.
Per 100 ml of blood, which is detected by the breath analyzer,
which makes him incapable of exercising proper control over the
vehicle and only under these circumstances, the penal provision is
attracted. The relevant provision is reproduced as under:
“185. Driving by a drunken person or by a person
under the influence of drugs.–Whoever, while driving,
or attempting to drive, a motor vehicle,–
[(a) has, in his blood, alcohol exceeding 30 mg. per
100 ml. of blood detected in a test by a breath
analyser, or]
(b) is under the influence of a drug to such an extent as to
be incapable of exercising proper control over the vehicle.
shall be punishable for the first offence with
imprisonment for a term which may extend to six months,
or with fine which may extend to two thousand rupees, or
with both; and for a second or subsequent offence, if
committed within three years of the commission of the
previous similar offence, with imprisonment for term which
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[2024:RJ-JD:37048] (17 of 24) [CMA-1695/2016]
may extend to two years, or with fine which may extend to
three thousand rupees, or with both.
Explanation.–For the purposes of this section, the
drug or drugs specified by the Central Government in this
behalf, by notification in the Official Gazette, shall be
deemed to render a person incapable of exercising proper
control over a motor vehicle.”
However, in the present case, upon the perusal of the Post-Mortem
Report (Ex.22), it is seen that the concerned Doctor has
specifically noted against the heading of Stomach that the
stomach was filled with undigested food with poor alcoholic
smell and apart from this document, nothing has been placed on
record to show that the deceased driver of the motorcycle was
under the influence of alcohol at the time of driving the vehicle,
which could have undermined his control over the said vehicle.
23. Furthermore, this Court also takes into consideration the
judgment passed by the Hon’ble Apex Court in the case of Jiju
Kuruvila & Ors. v. Kunjujamma Mohan & Ors. reported in AIR
2013 SC 2293, wherein it was observed by the Hon’ble Apex
Court that even when the Post-Mortem Report had specifically
mentioned that there was a strong smell of spirit, however, the
same cannot lead to the conclusion that the deceased had been
negligent while driving the vehicle. The relevant para is
reproduced as under:
“25. Post Mortem report, Ext.-A5 shows the condition of
the deceased at the time of death. The said report
reflects that the deceased had already taken meal as
his stomach was half full and contained rice, vegetables
and meat pieces in a fluid with strong smell of spirit.
26. The aforesaid evidence, Ext.-A5 clearly suggests that
the deceased had taken liquor but on the basis of the
same, no definite finding can be given that the deceased(Downloaded on 17/09/2024 at 08:41:01 PM)
[2024:RJ-JD:37048] (18 of 24) [CMA-1695/2016]was driving the car rashly and negligently at the time of
accident. The mere suspicion based on Ext.- B2, ‘Scene
Mahazar’ and the Ext.-A5, post mortem report cannot take
the place of evidence, particularly, when the direct
evidence like PW.3, independent eye-witness, Ext.-A1(FIR),
Ext.-A4(charge-sheet) and Ext.-B1( F.I. statement) are on
record.”
Therefore, in the present case too, merely a poor smell of alcohol
as determined by the Doctor cannot lead to the conclusion that
the deceased, Late Sanjay Kumar had been negligent while driving
the motorcycle at the time of the accident as he was under the
influence of alcohol.
24. Secondly, while addressing the issue of liability of the
Insurance Company in case of an occupant on a vehicle insured
under “Farmer’s Package Policy”, this Court, upon perusal of the
Insurance Policy (Ex.DW.A1) produced by the appellant-Insurance
Company in S.B. Civil Misc. Appeal No. 1801/2012, finds that the
offending vehicle, i.e. tractor-trolley had been insured under
‘Farmer’s Package Policy’ and, upon perusal of the Registration
Certificate (Ex.16) of the offending vehicle, i.e. the tractor-trolley,
it seen that the offending vehicle has a seating capacity (‘ बैठने का
स्थान’) to be one only, which is occupied by the driver of the
offending vehicle and thus, occupants, i.e. the
respondent/claimant in S.B. Civil Misc. Appeal No. 1801 of 2012,
in the present case who was admittedly traveling on the tractor,
amounts to violation the policy and in the absence of any premium
charged towards him, the liability of such occupant sitting on the
tractor, is not covered within the ambit of the Insurance Policy. It
is also seen that the Hon’ble Apex Court has clearly observed in
the case of Balakrishnan (supra) that the pillion rider on a two-
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[2024:RJ-JD:37048] (19 of 24) [CMA-1695/2016]
wheeler and an occupant in a car are insured under the
Package/Comprehensive Policy, however in the present case, it is
a “Farmer’s Package Policy” before this Court, for consideration
which is issued specifically for agricultural and forest purposes and
therefore, when the offending vehicle was being plied for purposes
other than those specifically mentioned in the Insurance Policy,
this Court does not deem it fit to grant indulgence to this extent
that the liability of an occupant falls upon the Insurance Company
when there was neither any premium charged towards the said
Occupant, nor was the offending vehicle plying in accordance with
the conditions stipulated in the Insurance Policy.
26. This Court further finds that the learned Tribunal has taken
into consideration the fact that at the time of accident, the
offending vehicle was being used to carry bricks for the purpose of
construction of a farm-wall (मुंडेर) and therefore, it was rightly
observed by the learned Tribunal that the offending vehicle was
being driven as per the conditions of the Policy while being utilized
for agricultural purposes only. Thus, the contention of the
appellant-Insurance Company that the offending vehicle was being
driven in contravention to the conditions of the Insurance Policy,
which specifically provided for Agricultural and Forestry Uses, is
devoid of merit inasmuch as the offending vehicle was being
driven for agricultural purpose only, i.e. to build a farm-wall ( मुंडेर),
as considered by the learned Tribunal.
27. This Court also takes into consideration the judgment passed
by the Hon’ble Apex Court in the case of Kamil Khan and Ors. v.
Fimidabee and Ors. reported in [Civil Appeal Nos. 8785-8786 of
2015 decided on 03.07.2018] wherein it has been observed that
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[2024:RJ-JD:37048] (20 of 24) [CMA-1695/2016]
the Court has to decide the liability of the Insurance Company
after taking into account the policy and the stipulations made
therein. The relevant part of the judgment is reproduced as under:
“27. From the factual position as already analysed earlier, it
is noticed that the battery of the tractor was used for
digging of well in a field used for agricultural purpose. The
insured had contended that the work of digging of well in a
field used for agricultural purpose would embrace an
activity associated with agriculture for irrigating the field
and we have answered the same in the affirmative. We
may immediately state that our answer does not help in
fastening the liability because there has been no analysis
as regards the terms and conditions of the policy and its
fundamental character. The High Court, as we notice, has
not dealt with any of these matters, the adjudication
whereof has now become inevitable to answer the issue
about the liability to be borne by the insurer, the owner of
the vehicle (insured) or otherwise. This adjudication
requires analysis of relevant material including the
insurance policy and evidence of concerned witnesses, for
understanding the terms and conditions of the policy
regard being had to nature of policy and the extent of the
liability of the insurer, if any. As the High Court has not
considered this aspect at all, we deem it appropriate to
relegate the parties to the High Court for determining the
singular issue about fastening of the liability on the insurer
or the owner of the vehicle. Under these circumstances, we
are of the considered opinion that until that issue is finally
decided, the insurance company must pay the
compensation amount payable to the claimants as
determined by the tribunal in terms of the award dated 5th
January, 2008, which payment will be subject to the
outcome of the remanded appeals to be decided by the
High Court. Needless to state that the claimants need not
contest the remanded proceedings before the High Court as
it is remitted only for limited purpose to determine the(Downloaded on 17/09/2024 at 08:41:01 PM)
[2024:RJ-JD:37048] (21 of 24) [CMA-1695/2016]liability amongst the insurer (United India Assurance Co.
Ltd.) and owner of the vehicle, Kanhaiyalal.”
Thus, this Court after taking into consideration the fundamental
nature of the Insurance Policy, by virtue of which the offending
vehicle had been insured for agricultural and forestry purposes
only and also the fact that the premium has been charged for
Agriculture Tractor, own damage and third party only, finds that
the occupant is not covered under the said Policy.
28. This Court also finds, upon perusal of the Site-Plan (Ex.24)
that it has been specifically observed in the Site-Plan that the
accident took place on an 18 feet wide road, and while the
motorcycle was traveling within the width of 9 feet of the said
road from its left, from Dungarpur to Kherwara, it was the
offending vehicle, i.e. the tractor-trolley which collided with the
said motorcycle, whilst going to its further right. The relevant part
of the Site-Plan (Ex.24) is reproduced as under:
“A LFkku ?kVukLFky fLFkr gS tgka A eks- lkbZ- ua- RJ27 SD 3463
dks VªSDVj A2 No. RJ12 R-1182 }kjk VDdj ekj ,DlhMs.V djuk
fLFkr gSA ?kVukLFky jksM ds 9 QhV ds vanj VªSDVj pkyd }kjk M/C
dks VDdj ekj ,DlhMs.V djuk ik;k tkrk gSA”
29. Thus, taking into consideration the nature of the Insurance
Policy as well as the terms and conditions stipulated therein, this
Court is of the view that the respondent/claimant no. 1, Laxman
suffered injuries on account of the said accident, however, he was
not covered by the terms of the said Policy inasmuch as firstly, the
Insurance Policy is a “Farmer’s Package Policy” insuring a vehicle
only for Agriculture and Forestry Purposes and secondly, the
judgment of Hon’ble Apex Court in the case of Balakrishnan
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[2024:RJ-JD:37048] (22 of 24) [CMA-1695/2016]
(supra) takes into consideration the risk of pillion rider on a two-
wheeler and an occupant in a car for imposing liability upon the
Insurance Company under a Package/Comprehensive Policy,
however, presently, the offending vehicle is a tractor-trolley and
therefore, while taking into account the Insurance Policy which has
not charged any premium towards the occupant, and also, the
Registration Certificate (Ex.16), which clearly mentions the seating
capacity (‘बैठने का स्थान’) of the offending vehicle, i.e. the tractor to
be one only, and despite this, the respondent/claimant no. 1 in
S.B. Civil Misc. Appeal No. 1801 of 2012, was admittedly sitting on
the tractor apart from the driver, thus, under the given
circumstances, the risk of the occupant was not covered under the
Insurance Policy. Moreover, with regards to the contention of the
counsel for the appellant in MAC Case No. 279/2009 and
278/2009 along with 12.04.2016 in MAC Case No. 18/2012 and
19/2012, that the deceased Sanjay Kumar, had consumed liquor
and account of said influence of alcohol, drove the other vehicle,
i.e. the motorcycle, negligently, cannot be taken into account
inasmuch as, it is only the Post-Mortem Report (Ex.26) which
mentions about a poor smell of alcohol, which is not sufficient to
prove that the deceased Sanjay Kumar was under the influence of
alcohol and consequently, drove negligently at the time of
accident. It is also seen that merely because there were 4 persons
traveling on the motorcycle, at the time of accident, it cannot be
said that the driver of the motorcycle had been negligent, as it is
seen from the Site-Plan (Ex.24) that it was the offending vehicle,
i.e. the tractor-trolley who drove negligently and collided with the
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[2024:RJ-JD:37048] (23 of 24) [CMA-1695/2016]
motorcycle while going to its right on an 18 feet road, when the
motorcycle itself was found to be within 9 feet from its left.
30. Therefore, in the light of aforesaid discussion, the appeals,
S.B. Civil Misc. Appeal No. 1695/2016, S.B. Civil Misc. Appeal No.
1816/2012, S.B. Civil Misc. Appeal No. 1853/2012 and S.B. Civil
Misc. Appeal No. 1694/2016, whereby the learned Tribunal had
awarded compensation to the respondent/claimants who were
traveling on the motorcycle from Dungarpur to Kherwara are
dismissed inasmuch as merely because the driver of the
motorcycle had consumed alchohol is not sufficient to prove that
he was indeed under the influence of alcohol while driving the
motorcycle and that, even the Post-Mortem Report (Ex.22)
mentions only a poor smell of alcohol.
31. Further, the S.B. Civil Misc. Appeal No. 1801/2012, wherein
the learned Tribunal has awarded a compensation to the
respondent-claimant who was sitting on the tractor, at the time of
the accident, is partly-allowed inasmuch as the respondent-
claimant in the said appeal was traveling as an occupant in the
tractor-trolley, the seating capacity of which tractor was only one
and also, the respondent-claimant was not insured. The appellant-
insurance company is exonerated from its liability to pay the
compensation as determined by the learned Tribunal in S.B. Civil
Misc. Appeal No. 1801/2012.
32. If any amount has been disbursed to the
respondent/claimant in S.B. Civil Misc. Appeal No. 1801/2012, the
claimant shall refund back the said amount along with interest @
6% p.a. to the appellant-Insurance Company, however, the
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[2024:RJ-JD:37048] (24 of 24) [CMA-1695/2016]
respondents/claimants shall be entitled to get compensation from
respondents/owner and driver of the offending vehicle.
32. Record be sent back forthwith. No costs.
(DR. NUPUR BHATI),J
51-/devesh/-
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