Rajendra Roy v. Yuyraj Safau

Smt. Shivbati Satiu, aged about 42 yeara, W/o Shri Yuviaj Sahu, Both are resident of viilage and post Selud, Tahsil Pataa, Thana Utai 006 411 AUiaace Gcueral Insuraace Bajaj Coinpany Limited Registered at Head Office GE Plaza, Airport Road, Yervada, (India) Divisional Pune Manager at Division Office Shivmohaa Bhawan, v'idhan Sabha Road, Paudan, Distt. Raipur (CG) 492 001. Police No. 00 09-2303-1811-00000077. Limitation from dated 10-4-08 to 9-4-09 (Insurer of yehicle Mahindra MaMadra No, CG 07-D-6436 Shri Abhay Tiwari, Adv. for the appellants. Shri Sachin Singh Rajput, Adv. for fhe respondent No. 3. ORAL ORDBR ( 24-7-2009) Heard on admission.

2. The mstant has been preferred by tfae owrier of ffae- vfchicle against.fhe award dated 25-2-2009 passed by 7th Additional * t • ^ ^ Motor Accident Clatms Tribunal, (FTC) Durg in claim case No. 85/2008 whereby and whereunder wliile aUowing fhe application filed, by the claimants/ respondent No. 1 and 2 under Section 140 of fhe Motor Vehicles Act, as fhe respondent No. 3 has been exbnerated from tlie liabilifrt' to pay the amouiit of award and the liability has been fastened upon the owner / appeUant of the vehicle.

3. Brief facts of the ease are that on 16-6-2008, deceased Chhabaal went in fhe mmes ofPappu Verma for loading i-mloading of Patthar, Gitti, Murum, -Ret and was going sitting in fhe m.udguard of fhe tractor bearing registration No. CG 07 D 6436, which was beuij Vi driven by applicant No. 1. Due to rash and negligent drimng of fhe driver ofthe tractor, the traGtor in question met with an aceident m which, CKhabUal died. The claimarits, who are unfortunate father aad mother of fhe deceased, filed the claim petition under Section 166oftheM.V.Act.

4. Shri Abhay Tiwari, leamed counsel for fhe appellant submits fhat fhe leamed TribunaJ. went wrong in fasteniag the liabilit}7 upon fhe owner to pay compensation inasmuch as fhe Uabiiity ought to have been fastened upon the insurance conipany at the tiiae. of passing o.f tfae irapugned order aad fhe matter would have been settled at fhe tune of passtng fhe final award. Per contra, Shri Rajput, leamed coiinsel appearing for fhe 5. respondent No. 3 submits fhat m view of the judgment of the Supreme Court in Oriental Insurance Go. Ltd. -v- Brij Mohan aad others reported m (1997) 7 SCC 56, as the .deceased was sitting in fhe uiudguard of the tractor as a gratiiitous passenger who is not covered under the policy nor there is any statutory UabiUty of fhe tnsurance company under Section 147 of fhe Act to cover such liability nor by taking extra premium any such liabilityi has been therefore, such award undertaken by fhe iasurance company, baanot be passed agatast the insurance conlpany and fhe Tnbunal ^ has rightly exonerated the tnsurance company from payment of compensation. . The Supreme Court m para 8 and 10 of Oriental Insurance 6. Co. Ltd. -v- BriJ Mohan and others's. case (supra) has observed .: thus:- ' ' ' - . , : ; . : <» "8. The Tribunal in its award has, inter alia, noticed that the appellant herein hadraised a specffw defehce, ncanely, the trolly was not insured. K does not appear that the said contentton of the appeUant had been gone into. There is nothing on record to shsw that the owner of the tractor had prodvced any msurance cover in respect ofthe trolly. R isfiirthermore not disputed thctt the tractor was insured only for the purpose of carrying out Insurance agncultural works. The representative of Company Mr Hccri Singh Meena on cross-examination merely accepted fhs suggestionthat cutting the earth andleveling the field wtth earth wouldbe an cignculturalworkbut respondent 1 ctoim petition before the himself categoTically stated in his Tribunal that theearthhad been dug and was being cccmed in fhe troUy to the brick kUn. Evidently, the earthwasmectnttQbe iised onlyfor the purpose of manufacturing bridvs. Digging of eccrfh far the purpose of mctnufcicture of bricks indisputably ccnnot drncnmtto ccatym.g ciutofthe agricultural work. Furthermore, the respondent was not the owner of the 10. tractor. He was also not the driver thereof. He was merely a passenger travelmg on the trolley attached to the tractor. His clamipetitlon, therefore, couldnothave beenaflowed inwswof the decision of this Court in New Szdia Assuronce Co. Ltd. -v- Asha Rani ((2003) 2 SCC 223) wherem the eca-lier deasion of in New India Assurance Co.-v- Satpcd Singh this Court (2000)1SCC 237 was overruled. Jh Asha J?ani, itwas, mter alia held: '25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodity injury 'public seruice vehvde'., Proviso to cm.y passenger of appended thereto categorvxdly states that compulsory coverage in respect of drivers and conductors of public seruice vehide and emplcnjees cajried in a goods veTwde would be limited to the liability under the Workmens Compensation Act. Kdoes not speak ofany passenger ina 'goodscaniage'. . ! .

26. '.. in the relevant'proinswns in the In view of the changes 1988 Act vis.-a-vis the 1939 Act,weareofthe opinwntHcct the rneaning of the words 'any persari' naist, alsp be »..- •• 1 :1 .4. '27. attributed having regccrd tothe context in which they have 'a third party'. Keeping been used i. e. in view the provisions of the 1988 Act, we are of the opinion that as the prawswns thereof do not enjoin any statutory liability on the owner ofa vehide to get his vehicle insuredfor any passenger traveling in a goods vehide, the insurers ivould not be liable therefor. Furthemwre, sub-clause (i) ofdause (b) ofsub-sectlon (1) of Section 147 speaks ofliability which may be incurred by the owner of a vehicle in respect of deafh of or bodUy injury to any person or dcanage to any vehicle in a public place, whereas, sub-dause (ii) thereof deals with Uability ivhich may be incurred by the awner of a vehicle against fhe death of or bodily injury to any passenger of a public service vehicle causedby OT arism.g out oftheuse of the vehicle in a public place.'

7. In view ofthe above dictiim offhe Supreme Court, in the facts and circuiiistances of the case, I have no hesitation to hold that the appeUant / tnsurance company has been rightly exonerated by fhe Tribunal and the award has righfly been passed.

8. Therefore, the appeal is liable to be and is hereby dismissed at adiriission stage. _ Sd/- N.K. Agrawal i Judge | v^ .^