NATIONAL INSURANCE COMPANY LTD. Vs. BANWARILAL AND OTHERS

JUDGEMENT

(1.) This appeal has been filed by the appellant Insurance Company under Section 173 of Motor Vehicles Act 1988 (hereinafter shall be referred to as the Act of 1988), against the final award dt.12.12.2003 passsed by the court of Third Additional Motor Accident Claims Tribunal Morena in Claim Case No. 41/2003, thereby awarding a sum of Rs. 3,86,500/- alongwith 9% interest w.e.f. the date of filing application i.e. 05.05.2003 and also cost of the proceeding at Rs. 800/-. It has been directed that amount of Rs. 50,000/-, which was awarded as an interim compensation shall be adjusted out of the total compensation amount.

(2.) It is the contention of the learned counsel for the appellant that the accident had taken place when son of the respondent No. 1 i.e. Kalia was sitting on the mudguard of the tractor bearing No. MP-06/J.A.5977 and were going from village Bindwa. Tractor was driven by the respondent No. 2 and because of rash and negligent driving of the tractor and trolley, the tractor turned turtle and in the accident Kalia died. It is further submitted that since the tractor was being driven against the terms and conditions of the policy and the tractor-trolley was insured only for the agricultural purposes, therefore, it being driven in violation of the insurance policy, no claim amount could have been awarded against the Insurance Company. In view of such submission, the award, as has been passed against the Insurance Company, be set aside as insurance company has no liability to pay the compensation for the vehicle being driven in violation of the terms and conditions of the insurance policy. Learned counsel for the appellant has drawn attention of this court to para 16 of the award, wherein while deciding the issue No. 3 namely; whether the tractor was being driven in violation of the terms and conditions of the insurance policy, the issue has been decided in affirmative and thereafter in para 16, it has been categorically mentioned that since tractor was being driven in violation of the policy, the respondents No. 1 and 2 i.e. owner and driver are responsible to pay compensation to the applicant, but arbitrarily in the concluding part i.e. para 18, an award has been passed jointly and severally against all the respondents including insurance company but liberty has been granted to the present appellant insurance company to recover the amount of compensation paid by it from respondents No. 1 and 2.

(3.) Learned counsel for the appellant has placed reliance on the judgment of this court in the case of United India Insurance Co. Ltd. v. Jagannath and others as reported in 2015 ACJ 276 , wherein it has been held that Insurance company is not statutorily liable for compensation of gratuitous passenger in tractor-trolley. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Baljit Kaur as reported in 2004 ACJ 428 (SC) . Similarly, reliance has been placed on the Full Bench decision of this court in the case of Bhav Singh v. Smt. Savirani and others as reported in 2008 (I) MPJR (FB) 11 . In this case, court has defined meaning of 'third party' according to which, "any person other than the insurer and the insured who are parties to the insurance policy is a 'third party'." Liability of third party can not be discharged unless liability is fastened on the insurer under Section 147. Reliance has also been placed on the decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. V. Chinnamma and others as reported in III (2004) ACC 1 (SC) , wherein it has been held that when tractor and trolley not used for agricultural purposes, then the case is covered by the decision of the Hon'ble Supreme Court in the case of Asha Rani i.e. New India Assurance Co. Ltd. v. Asha Rani reported in (2003) 2 SCC 223 , wherein it was held that the insurance company would not be liable for paying compensation to a passenger in a goods vehicle where he was travelling as a owner of the goods when that vehicle meets with an accident. He has also placed reliance on the judgment of the Division Bench of this court in the case of Ramji Lal v. Omkar Lal and others as reported in 2004 (1) ACJ 238 (MP) DB , wherein it has been held that the insurance company is not liable for the death of a boy sitting on the tractor when he met with an accident due to his rash and negligent driving. He has also placed reliance on the judgment of this court in the case of National Insurance Co. Ltd. v. Jagdish and others as reported in 2004 (1) TAC 165 (MP) DB , wherein offending tractor was insured for agricultural purposes and premium was paid to cover the risk of driver only. It was held in the aforesaid case that sitting capacity of the tractor is only one and carrying passengers not allowed, therefore, the tractor being driven in violation of the terms and conditions of the policy, insurance company is not liable to pay compensation. He has also placed reliance on the judgment of this court passed in M.A.No. 719/2003-National Insurance Co. Ltd. v. Smt. Malti Devi and others , in which the ratio is that when there is no provision for passenger to be accommodated in a tractor and deceased was travelling on the mudguard of the tractor, he being a passenger was not covered as per terms and conditions of the policy and therefore as per the law laid down in the case of Oriental Insurance Co. Ltd. v. Brij Mohan and others as reported in 2007 ACJ 1909 , insurance company can not be saddled with the liability and has to be exonerated.