NEW INDIA ASSURANCE CO LTD Vs. TRIVENI BAI

JUDGEMENT

(1.) AS both appeals arise out of a common award, they are being disposed of by this common order.

(2.) CLAIMANTS in these appeals are wife, parents and children of deceased Lakhan dhakad and have filed the claim petition seeking compensation for death of Lakhan dhakad. It is stated that Lakhan Dhakad was a resident of Gola Pahadi, Lashkar, gwalior. He was staying in village Gaajigarh and used to purchase agriculture produce from the agriculturists of the village and take them to mandis at Shivpuri and other places and used to earn his living by selling these agriculture produce. It is the case of the claimants that in this manner, lakhan Dhakad used to earn Rs. 50,000 per year and they were dependent upon him. On 5. 1. 2002, Lakhan Dhakad went from his village to sell groundnut in Berad mandi and for the said purpose, he went in trolley No. MP 33-H 1428 which was owned by respondent No. 4, Ramdas and insured with New India Assurance Co. Ltd. , appellant in M. A. No. 333 of 2003. The said trolley was pulled by tractor No. MP 33-H 0900 driven by Kallu, respondent No. 8, owned by respondent No. 9 in m. A. No. 333 of 2003 and insured with oriental Insurance Co. Ltd. , appellant in m. A. No. 353 of 2003. It is stated that along with Lakhan Dhakad, various other persons were travelling in the trolley with their agriculture produce and goods and when the tractor reached a place called nahargarh, it turned turtle as it was driven rashly and negligently and Lakhan Dhakad came under the trolley and died because of the said accident. Apart from Lakhan dhakad, another person, namely, one Bali ozha was also affected because of the accident. On the ground that the claimants are entitled to compensation, the claim petition was filed and after evaluating the evidence and the material that has come on record, a sum of Rs. 4,18,000 has been awarded as compensation. It is also held that the appellants in both these appeals are jointly and severally responsible for paying the compensation and as the tractor and trolley were insured separately with the respondent Nos. 3 and 5 in the claim petition (the present appellants), they have been directed to pay compensation at the rate of 50 per cent each. Being aggrieved by the award passed, both the insurance companies have filed these appeals, i. e. , m. A. No. 333 of 2003 is filed by New india Assurance Co. Ltd. who have insured the trolley in question bearing No. MP 33-H 1428 and M. A. No. 353 of 2003 is filed by Oriental Insurance Co. Ltd. who have insured the tractor in question, i. e. , No. MP 33-H 0900. In the appeal filed by Oriental insurance Co. Ltd. , i. e. , M. A. No. 353 of 2003. Mr. R. V. Sharma, learned counsel for appellant argued that as the tractor was insured only for agricultural purpose under the Kissan Package Policy and as the tractor was used for carrying passengers and goods after payment of hire and reward, insurer of the tractor was not liable to pay any compensation. Mr. R. V. Sharma further argued that from the evidence that has come on record, it is seen that the deceased was travelling in the trolley, the insurer of the tractor need not pay any compensation. Taking me through the statements of the witnesses and the appellant and referring to various judgments, it was emphasised that in holding the insurance company liable to pay compensation, the learned Tribunal has committed serious error and, therefore, the award calls for interference in this appeal. Mr. Sharma tried to emphasise that the finding recorded by the Tribunal is a perverse finding and as the tractor was used for the purpose other than agricultural purpose, Oriental Insurance Co. Ltd. is not liable to pay the compensation as breach of policy, Exh. D6 is proved.

(3.) APART from adopting the arguments made by Mr. R. V. Sharma, Mr. B. N. Malhotra, learned counsel for the appellant in m. A. No. 333 of 2003 argued that as the accident was a result of negligence on the part of the driver of the tractor and as no negligence of the trolley is proved, insurer of the trolley cannot be held liable to pay any compensation. It was emphasised by him that the trolley is always pulled by the tractor and as the accident took place because of the negligence of the tractor, the appellant insurance company who have insured the trolley cannot be held liable to any payment of compensation. Accordingly, mr. Malhotra seeks exoneration from the payment of liability.