ORIENTAL INSURANCE COMPANY LTD Vs. SITA AND OTHERS

JUDGEMENT

(1.) This appeal has been filed by the insurance company disputing its liability in a claim filed under Section 163-A of the Motor Vehicles Act, leading to the death of the employee. The plea raised is that the driver was not a third party and the insurance company was not to indemnify the owner. The award has been challenged also on the ground that the tractor was being used for commercial purposes whereas it was insured for agricultural use.

(2.) Noting the factual matrix; a claim petition under Section 163-A of the Motor Vehicles Act was filed by the legal heirs of Manohar. He was a driver on the tractor. An accident occurred regarding which a DDR was lodged. It was reported that Manohar was driving the tractor which was lifting the earth. The tractor trolley got stuck in the earth, the driver stepped on the accelerator and the front tyres lifted. Manohar fell in between the tractor-trolley and suffered injuries leading to his death. The claim petition was filed as the accident occurred while the vehicle was on use. The owner failed to step into the witness box. The insurance company raised the plea that the vehicle was being used for commercial purpose and therefore, they were not liable. The Tribunal rejected the argument relying upon a judgment of this Court in Oriental Insurance Co. Ltd. Vs. Vijay Singh & Others in FAO No.253 of 2006, decided on 01.09.2006. The income of the deceased was taken as Rs.3,300/- per month. A deduction of 1/3rd was made and after applying the multiplier of 18, the compensation was calculated as Rs.4,75,200/-. A sum of Rs.10,000/- was added towards funeral expenses and a sum of Rs.15,000/- was added for loss of consortium and an award of Rs.5,20,000/- was passed.

(3.) The submission made on behalf of the appellant is that the tractor was insured only for agricultural and forestry purposes and it was being used in connection with the business of the insured which was not permitted. It was contended that the driver could not taken to be third party and the personal accident cover was only for owner-driver. It was urged that there is a distinction in law and reference to owner-driver could not mean owner/driver. It was urged that the issue was examined in Sushila and others Vs. Pankaj Mahajan and another, 2014 ACJ 935. It was contended that driver is not third party and even if the policy is a package policy, the claimants at the most were entitled to Rs.50,000/- under the no fault liability under Section 140 of the Motor Vehicles Act. Reference was also made to National Insurance Company Ltd. Vs. Sinitha & others, 2012 1 RCR(Civ) 205.