ORIENTAL INSURANCE CO LTD Vs. RICHHABAI

JUDGEMENT

(1.) This order shall also govern disposal of M.A. No. 1876 of 2009 as both the appeals are arising out of award dated 4.10.2008 passed by VIIth M.A.C.T., Indore in Claim Case No. 192 of 2007, whereby claim petition filed by respondent Nos. 1 to 3 was allowed and compensation of Rs. 3,80,000 was awarded. In M.A. No. 85 of 2009, which is the appeal filed by the appellant insurance company, the grievance is that learned Tribunal committed error in issuing the direction that the appellant shall pay and recover the same from respondent Nos. 4 and 5, while in M.A. No. 1876 of 2009 grievance of the respondent Nos. 1 to 3 is that the amount awarded is on lower side.

(2.) Facts of the case are that claim petition was filed by respondent Nos. 1 to 3 alleging that on 2.5.2007 Phoolsingh was travelling in tractor-trolley bearing registration No. MP 09-MA 1703 and 1704. It was alleged that the offending vehicle was containing fertilizer. It was alleged that because of rash and negligent driving of respondent No. 4 deceased fell down from the mudguard and wheels of the offending tractor rolled over him, with the result deceased sustained grievous injuries and brought to hospital, where he died. It was alleged that the offending tractor was owned by respondent No. 5 and driven by the respondent No. 4, therefore, they were liable for payment of compensation. The claim petition was contested by the appellant on various grounds including on the ground that since the offending vehicle was tractor, which was insured for agricultural purposes and the deceased was travelling on mudguard, which was not permissible. therefore, insurance company was not liable. The liability was also challenged on the ground that the offending vehicle was rented out at the relevant time. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded the compensation holding that respondent Nos. 4 and 5 were liable for payment of compensation but since the offending vehicle was insured, therefore, appellant was directed to pay and recover the same as the offending vehicle was used in violation of the terms and conditions of the policy. For this contention reliance is placed on a decision in the matter of Oriental Insurance Co. Ltd. v. Brij Mohan, 2007 ACJ 1909, wherein the tractor was engaged for bringing earth from the site of digging to brick-kiln for manufacturing bricks which is not an agricultural work. It was held that insurance company was not liable. However, in exercise of Article 142 of the Constitution of India, the direction was given to pay and recover. Further reliance is placed on a decision in the matter of United India Insurance Co. Ltd. v. Anubai Gopichand Thakare, 2008 ACJ 213, wherein Bombay High Court after following the law laid down in the matter of Brij Mohan , held that gratuitous passenger cannot be regarded as third party since he is not signatory to insurance contract, insurer cannot be held liable and it was also held that direction of the Tribunal to pay and recover from the insurer is incorrect, improper and illegal. It was also observed that the direction given by the Supreme Court in exercise of extraordinary jurisdiction cannot be construed as ratio laid down in this behalf. It is well settled that the subordinate courts and the Tribunal cannot exercise such extraordinary power. Reliance is also placed on a decision in the matter of Iffco-Tokio Genl. Ins. Co. Ltd. v. Shankarlal, 2009 ACJ 2618, in which this court has held that subordinate courts and the Tribunal cannot exercise extraordinary powers conferred by Article 142 read with Article 136 of the Constitution of India. In view of this learned counsel submits that appeal be allowed and the direction to pay and recover be set aside.

(3.) Mr. Vinod Bhavsar, learned counsel for the respondent Nos. 1 to 3, submits that amount awarded is on lower side, which deserves to be enhanced. It is submitted that since the offending vehicle was being used for agricultural purposes at the time of accident and the wheels of the trolley rolled over the deceased, therefore, respondent Nos. 4 and 5 along with appellant are liable for payment of compensation. Reliance is placed on a decision in New India Assurance Co. Ltd. v. Girvarnath, 2007 ACJ 613, wherein the passenger travelling on a tractor sustained injuries and it was held that since the passenger was gratuitous passenger as he did not pay any fare, therefore, the passenger was third party. It is submitted that the appeal be dismissed.