The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK In the matter of an application under Section 173 of M.V. Act, 1988 MACA No.190 of 2023 ……………… Magma HDI G.I. Co. Ltd., …. Appellant -versus- Kalpana Majhi & Others …. Respondents For Appellant : Mr.A.A. Khan, Advocate For Respondent Nos.1, PLR 2(a) & 2(b) : Mr. P.K. Nayak, Advocate. For Respondent No.3 : None PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY -------------------------------------------------------------------------- Date of Hearing: 14.05.2025 and Date of Judgment: 14.05.2025 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode.
Facts
2. Heard learned counsel appearing for the parties. None appeared on behalf of Respondent No.3 when the matter was called. 3. The present appeal has been filed by the appellant-company challenging the judgment dt.13.10.2022 so passed by the learned Second M.A.C.T, Northern Divn, Sambalpur in MAC Case // 2 // No.152 of 2015. Vide the said judgment, the Tribunal while allowing the claim of the claimants-respondents directed the appellant-company to pay compensation amount Rs.10,11,700/- along with interest @ 6 % per annum payable from the date of filing of the claim application till its realization. 4. It is the main contention of the learned counsel appearing for the appellant-company while assailing the compensation that the deceased was travelling in a Tractor and as per the R.C Book, a Tractor can carry only one person i.e. the driver. Since the deceased was travelling in the tractor as a gratituous passenger and was not covered by the policy, the appellant is not liable to pay the compensation so directed. 4.1. It is also contended that even if it will be taken that appellant was travelling in the trolley attached to the tractor, but the trolley having not been insured, in that way also the deceased was not eligible to be declared as a labourer, enabling the claimants to get the compensation, as claimed. 4.2. In support of his aforesaid submission reliance was placed to a decision of the Hon’ble Apex Court in the case of Oriental Insurance Company Ltd. Vs. Brij Mohan and Others, 2007 (3) TAC 20(SC ). Hon’ble Supreme Court in Para 10 & 11 of the said judgment has held as follows: 10. Furthermore, respondent was not the owner of the tractor. He was also not the driver thereof. He was Page 2 of 11 // 3 //
Legal Reasoning
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 & Ors. [(2003) 2 SCC 223] wherein the earlier decision of this Court in New India Assurance Co. v. Satpal Singh [(2000) 1 SCC 237] 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". thereto categorically states Proviso appended that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods liability under vehicle would be the Workmens Compensation Act. It does not speak of any passenger in a "goods carriage". limited the to 26. In view of the changes in the relevant provisions in the 1988 Act vis-‘-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 therefor. 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." 11. Although the effect in 1994 amendment in the Motor Vehicles Act did not call for consideration in Asha Rani (supra), a 3 Judge Bench of this Court had the in National occasion to consider the said question Insurance Co. Ltd. Vs. Baljit Kaur & Ors. [(2004) 2 SCC 1] in the following terms "17. By reason of the 1994 amendment what was added is "including" owner of the goods or his authorised representative carried in the vehicle. The liability of the owner of the vehicle to insure it compulsorily, thus, by Page 3 of 11 // 4 // the words any person occurring reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been in Section that 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention, there was no necessity of Parliament to carry out an amendment inasmuch as the expression any person contained in sub-clause (i) of clause (b) of sub- section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. 18. The observations made in this connection by the Court in Asha Rani case2 to which one of us, Sinha, J., was a party, however, bear repetition: (SCC p. 235, para 26) 26. In view of the changes in the relevant provisions in the 1988 Act vis-‘-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 therefor. 19. In Asha Rani2 it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act 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. Furthermore, an owner of a passenger- carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. 4.3. Reliance was also placed to a decision of the Apex Court in the case of United Insurance Company Ltd. Vs. Serjerao & Others, 2008 (1) TAC 6 (S.C ). Hon’ble Apex Court in para 8 of the said judgment relying on the decision of Brij Mohan has held as follows:- Page 4 of 11 // 5 // 4.4. Placing reliance on the aforesaid two decisions, learned counsel appearing for the appellant contended that since the deceased was travelling as a gratituous passenger in the offending Tractor and the seating capacity of a tractor is only one i.e. the driver, the appellant is not liable to pay the compensation as directed by the Tribunal. 5. Mr. P. K. Nayak, learned counsel appearing for the appellant-company on the other hand made his submission contending inter alia that since the tractor was duly insured with the appellant-company and the deceased was travelling in the Tractor, the appellant is liable to pay the compensation. 5.1. It is also contended that in view of the decision of the Hon’ble Apex Court in the case of Shivraj Vs. Rajendra and Others, Civil Appeal Nos.8278-8279 of 2018, 2018 (10) SCC 432, the claimants-respondents are liable to get the compensation from the appellant, but with right of recovery as against the owner-respondent No.3. Hon’ble Apex Court in para 10 & 11 of the said judgment has held as follows: 10. The High Court, however, found in favour of Respondent 2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely, the driver. As a result, the Insurance Company (Respondent 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion Page 5 of 11 // 6 // reached by unexceptionable in the fact situation of the present case. the High Court, in our opinion, is 11. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance company to pay the compensation amount to the appellant claimant with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. v. Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] , Mangla Ram v. Oriental Insurance Co. Ltd. [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] , Rani v. National Insurance Co. Ltd. [Rani v. National Insurance Co. Ltd., (2018) 8 SCC 492 : (2018) 3 SCC (Cri) 599] and including Manuara Khatun v. Rajesh Kumar Singh [Manuara Khatun v. Rajesh Kumar Singh, (2017) 4 SCC 796 : (2017) 2 SCC (Civ) 710 : (2017) 2 SCC (Cri) 492] . In other words, the High Court should have partly allowed the appeal preferred by Respondent 2. The appellant may, therefore, succeed in getting relief of direction to Respondent 2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner, Respondent 1. xxx xxx xxx 5.2. Reliance was also placed to a decision of the Hon’ble Apex Court in the case of V. Ranganathan and others Vs. Branch Manager, Civil Appeal No.7179 of 2022, decided on 11.10.2022. In a similar case, Hon’ble Apex Court in para 7 of the said judgment has held as follows: 7.In the present case also, the High Court ought to have partly allowed the appeal preferred by the Insurance Company and ought to have directed it to pay the amount of compensation to the appellants and granted liberty to recover the same from the tractor owner. 5.3. Reliance was placed to a decision of the Apex Court in the case of The Royal Sundaram Alliance Insurance Company Limited Vs. Honnamma and Others ,Civil Appeal No.6336 of 2025, 2025 INSC 625. Page 6 of 11 // 7 // Hon’ble Apex Court in para 11 & 14 of the said judgment has held as follows: 11. Therefore, the undisputed position is that the trailer was being pulled by/attached to the tractor and then the trailer on which the deceased was present, turned turtle/upturned, resulting in his death. From the above, it is clear that the tractor which was insured was the reason for the accident. It is not the case that only because of some fault on the part of the trailer stand- alone, the accident happened. To explain, we may give an example: that had the trailer been stationary at a place and due to some reason, it overturned or a mishap happened, then without the trailer being specifically insured the Appellant would not be liable to pay, but here the main cause of the accident was the tractor which was pulling/driving/moving the trailer and in such sequence of events, the trailer upturned. Thus, the accident was caused by the tractor, as during the course of being driven/pulled by the tractor, the accident occurred. xxx xxx xxx 14. To our mind, the learned Judges in Dhondubhai (supra) did not lay down an absolute principle of law, but taking note of Oriental Insurance Co. Limited v Brij Mohan, (2007) 7 SCC 56, it was ordered that the ‘respondent-Insurance Company shall pay the amount awarded by the High Court as compensation with the accrued interest and recover the same from the owner of the vehicle.’ A decision by a Division Bench of the Andhra Pradesh High Court in United India Insurance Co. Ltd.,Kadapa District v Koduru Bhagyamma, 2007 SCC OnLine AP 830 is relevant: ‘1. This case has come before this Court on a reference made by a learned Single Judge of this Court as it was contended before the learned Single Judge by the appellant that as the trailer in which the deceased was travelling was not insured, although it was attached to the tractor which was insured, therefore no liability could be fastened upon the insurer. 13. Now on analysis of these judgments and the provisions of law which have been quoted above, we Page 7 of 11 // 8 // feel that the law has been correctly appreciated by a learned Single Judge of this Court in Gunti Devaiah v. Vaka Peddi Reddy (supra) and the reasons given by him are sufficient to hold that under the Motor Vehicles Act no separate insurance is contemplated for a trailer and when the trailer is attached to the tractor which is insured, it becomes the part of the tractor. We reproduce the Para 26 of the said judgment as under: of The claim “The word “vehicle” mentioned in Section 147 is co-relatable to the word motor vehicles, which is stipulated in Section 146. Therefore, the expression vehicle wherever appearing in Chapter X(XI) has to be only read as motor vehicle. for principle compensation in accidents arising out of the use of the motor vehicle is based on tortuous liability and the negligence of the driver of the motor vehicle is a sine quo non for maintaining a claim under the provisions of the Act. Inasmuch as the trailer by itself cannot be driven and it has to be carried or towed with a motor vehicle namely a tractor or a like self-propelled vehicles. Therefore, the question of driving the trailer in a rash and negligent manner would not arise. It is only the prime mover or the motor vehicle which controls movement of the tractor and in case of the negligence driving of the trailer or the motor vehicle, the owner of the vehicle and its insurer alone will be made liable for payment of compensation. But, since the trailer is attached can it be said that trailer should also be independently insured so as to avoid the liability of compensation in case of rash and negligent driving by the driver. That contingency would not arise, as it is only a vehicle and not a motor vehicle. It may be for tax purposes, it is treated as a goods vehicle. But, under the provisions of the Motor Vehicles Act, no separate insurance is contemplated. When the trailer is attached to the tractor it becomes a tractor-trailer. There is no provision requiring the trailer to be separately insured to cover the third party risk. The reasons are obvious that it cannot be driven by the driver as in the case of motor vehicles or tractors. Thus, a separate distinction has been drawn between the motor vehicle and a vehicle i.e., visible in all the definitions and more Page 8 of 11 // 9 // especially in Chapter XI. The same situation also persists in Chapter X in case of no fault liability wherein it has been stated that whether a death or a permanent disability of any person has been resulted from an accident arising out of the use of a motor vehicle or motor vehicles and there is no reference to vehicle as such. This aspect was never considered in any of the decisions relied on by the learned Standing Counsel for the Insurance Company and also for other side.” 5.4. Placing reliance on the aforesaid decisions, learned counsel appearing for the claimants-respondents contended that since the Tractor was duly insured with the appellant- company, the claimants-respondents are eligible to get the compensation and learned Tribunal has rightly assessed the same in their favour. It is accordingly contended that the impugned judgment needs no interference. 6. On being confronted with the decision relied on by the learned counsel appearing for the claimants-respondents, learned counsel appearing for the appellant-company contended that if this Court is inclined to uphold the judgment passed by the Tribunal, then by following the decision of the Hon’ble Apex Court, right of recovery be allowed against owner-respondent No.3. 7. Having heard learned counsel appearing for the parties and considering the submissions made and placing reliance on the decisions of the Apex Court in the case of Shivraj and V. Ranganathan as cited (supra), as cited by the learned counsel appearing for the claimants-Respondents, it is the view of this Court that the Tribunal has rightly held Page 9 of 11 // 10 // the appellant-company liable to pay the compensation. This court is accordingly not inclined to interfere with the same and direct the appellant-company to deposit the compensation amount so awarded along with the interest before the Tribunal within a period of eight (8) weeks. 6.1. It is observed that on such deposit of the amount, the Tribunal shall do well to disburse the same in favour of the claimants-respondents proportionately in terms of the judgement passed on 13.10.2022. 6.2. It is further observed that if the Appellant-Company will fail to deposit the compensation amount within the time stipulated here-in-above, the compensation amount of Rs.10,11,700/- shall carry interest @7% per annum payable from the date of expiry of the period of 8 (eight) weeks till it is so deposited. 6.3. However, following the decisions in the cases of Shivraj as well as V. Ranganathan, this Court allows right of recovery as against the Owner-Respondent No.3. It is observed that if any such application will be filed seeking recovery of the amount, the owner-Respondent No.3 shall be given due opportunity of hearing by the Tribunal and the application so filed by the appellant be decided in accordance with law in which this Court expresses no opinion. 6.4. It is observed that only after deposit of the amount as directed, Appellant-Company shall be permitted to take refund of the statutory deposit along with accrued interest, if any, on proper identification. Page 10 of 11 // 11 //
Decision
The MACA accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 14th May, 2025/Sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticaition of order Location: high court of orissa, cuttack Date: 09-Jul-2025 13:00:28 Page 11 of 11