VALIMOHMAD Vs. RAMABEN VIRPURI GOSWAMI

JUDGEMENT

(1.) Both these appeals under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") are directed against the common judgment and award dated 15th July, 2000 passed by the Motor Accident Claims Tribunal (Main), Banaskantha District at Palanpur (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No. 338/1992, hence the same were taken up for hearing together and are decided by this common judgment. The appellant in First Appeal No. 2691 of 2000 is the owner of the offending tractor and the appellant in First Appeal No. 2159 of 2001 is the original claimant. The appellant in First Appeal No. 2159/2001 (hereinafter for the sake of convenience referred to as "the claimant") filed a claim petition before the Tribunal stating that she had made a 'Khala' (threshing area) in her field for threshing wheat and bundles of unthreshed wheat were spread out in the Khala on 19th April, 1992 and the driver of tractor bearing M.V. No. GJ-9/8396 was running the tractor on the said bundles of unthreshed wheat at which point of time, the appellant was putting wheat bundles into the Khala sitting near it. According to the said appellant, the driver was driving the tractor with excessive speed and in a rash and negligent manner, on account of which, he lost control over the tractor and the tractor ran over the left hand of the appellant as a result of which the hand of the appellant got totally crushed and her left ribs were fractured. It was also the case of the appellant that prior to the accident, she was healthy and was personally carrying out household tasks and was engaged in the work of agriculture and cattle rearing; that she was maintaining buffaloes and selling the milk to the milk co-operative society and was thereby earning Rs. 1,200 to Rs. 1,500 per month. On account of the accident, she is now required to engage another person on a salary of Rs. 6,000 per month for looking after the cattle and requires the services of a maid servant for the household work. On account of the amputation of her left hand and on fracture of her left ribs, she is unable to do any laborious work and she was suffering from pain of the left ribs and left hand. It was the case of the appellant that she had to experience humiliation, embarrassment, and mental pain on account of the amputation of her hand as the same had resulted in disfiguring her body and her physical appearance has become ugly and that she could not sing and dance on auspicious occasions. She, therefore, filed the claim petition seeking compensation of Rs. 1,50,000.

(2.) Before the Tribunal, though both the opponents namely, the owner of the tractor as well as the Insurance Company entered appearance, however, the opponent No. 1 viz., the owner (hereinafter referred to as "the owner"), did not choose to file his written statement in response to the averments made in the claim petition. The Insurance Company filed its written statement and submitted that it was not liable for the claim as the accident had taken place in a private place and not a public place and that the insurance policy neither covered such a risk nor was it required to cover such a risk. The Tribunal, after appreciating the evidence on record, held that there was negligence on the part of the driver of the tractor and that the appellant - claimant was entitled to compensation of Rs. 1,07,800. On the question as to which of the opponents were liable to pay such compensation, the Tribunal held that the field of the claimant was not a public place and as such, the Insurance Company would not be liable and exonerated the Insurance Company of its liability as the accident had taken place in a private place and the policy being an "Act policy", the same did not cover any wider risk. The Tribunal, accordingly, held the appellant/owner to be wholly liable for payment of compensation to the appellant/claimant.

(3.) Mr. Apurva Jani, learned Advocate for Mr. Ashish Dagli, learned Advocate for the appellant/owner in First Appeal No. 2691/2000 assailed the impugned judgment and award by submitting that the Tribunal had erred in holding that the accident had not taken place in a "public place" and exonerating the Insurance Company of its liability to indemnify the owner in respect of the compensation awarded by it. Drawing the attention of the Court to the impugned judgment and award as well as to the record of the case, it was pointed out that the accident in question had taken place in the agricultural field owned by the husband of the claimant. Referring to the deposition of the claimant, it was pointed out that it was the categorical case of the claimant that the agricultural field in question was open on three sides and that any person can have access to the field from the public road. Referring to the cross-examination of the claimant, it was pointed out that she had denied that the entry was restricted. It was, accordingly, urged that the agricultural field where the accident took place squarely falls within the ambit of the expression 'public place' as defined under Section 2(34) of the Act. In support of his submission, the learned Advocate placed reliance upon the decision of the Karnataka High Court in the case of United India Insurance Co. Limited v. Purushothama and Ors.,2003 2 KCCR 885, wherein the vehicle which had caused the injury was a crop harvester of the deceased, who was a practising Advocate and who owned the land in question and had gone to supervise some operations when the driver was careless in operating the machine and the deceased sustained severe injuries and was killed. As regards the argument that the field was not a public place, the Court held that once the vehicle had been insured by the Insurance Company, unless there was a clause in the policy limiting the liability to the use of the vehicle in certain circumstances, which the Court did not find in the policy, it would not be permissible to argue that merely because the injury takes place at a place other than the conventional road, the liability of the Insurance Company is exonerated. The Court also was not willing to permit such a challenge principally because it found from the pleadings that these contentions were never taken up before the Tribunal and the respondents did not have notice of the same.