Judgment on Board

1. This appeal has been filed by the insurance company under Section 173 of the Motor Vehicles Act, 1988 (for short, the MV Act) seeking exoneration from its liability to pay 50% of the compensation, out of awarded amount of Rs.9,35,000/- passed by the Principal Motor Accident Claims Tribunal, Raipur in Claim Case No. 419/2015 vide its award dated 11.08.2016. The parties to this appeal shall herein after be referred as per their description before the Court below.

2. As per claim application filed under Section 166 of the MV Act, on 21.04.2010 at 4.00 pm, when the deceased Tarachand Sahu was going to his village Tamaseoni on a Tractor bearing registration No.CG/04/DM/3366 and trolley No.CG/04/DA-0166 (in short, the offending vehicle), which was being driven by Non-applicant No.1/driver Shiv Kumar Sahu and on account of his rash and negligent driving, the said offending vehicle turned turtle and the deceased was crushed under the said vehicle and later on, succumbed to the injuries. It is not disputed that at the time of accident, the offending vehicle was owned by Non-applicants No.2a - Chandra Prakash Dhiwar and Non- applicant No.2b - Panchuram Dhiwar and was insured with Non- applicant No.3 - IFFCO Tokiyo General Insurance Company Limited.

3. On account of death of Tarachand Sahu, a claim application was filed by his legal representatives under Section 166 of the MV Act seeking compensation of Rs.19,50,000/- under various heads, pleading inter alia, that he was aged 38 years at the time of accident and was working as mason.

4. The claim application was resisted by the Non-applicants on various grounds including Non-applicant No.3/insurance company taking a plea that there is violation of terms and conditions of the insurance policy.

5. Learned Claims Tribunal framed issues on the basis of pleadings and evidence and while deciding the issues No.1 & 2 in affirmative, held that on account of rash and negligent driving by Non-applicant No.1/driver, the offending vehicle turned turtle and the the deceased, who was sitting in the offending vehicle, was crushed under it and succumbed to the injuries and further held that, the offending vehicle was being plied in breach of policy conditions and consequently, awarded amount of compensation of Rs.9,35,000/- along with interest @ 6% per annum from the date of award till its realisation while directing Non-applicant No.3/insurer to first pay 50% of the amount of compensation and then recover the same from the Non-applicants No.1 & 2a, driver and owner. Hence, this appeal.

6. Learned counsel for the appellant/insurer submits that though the offending vehicle was insured with the appellant/insurance company on the date of accident, but the learned Tribunal, after considering documents available on record and oral evidence of respective parties, has arrived at a correct finding at the time of accident, the offending vehicle was being plied in contravention to the policy condition and despite that, it held the appellant/insurance company liable for payment of compensation to the extent of 50%, which is totally erroneous finding and cannot be sustained in the eye of law.

7. I have heard learned counsel for the appellant and perused the record of the Tribunal including the evidence adduced on record.

8. In the present case, it is not disputed that the deceased died on account of vehicular accident. It is also not in dispute that on the date of accident, the offending vehicle was insured with the appellant/insurance company.

9. Now, the question that remains to be considered is whether the Tribunal was justified in fixing the liability upon the appellant/insurance company to the extent of 50%?

10. Upon perusal of evidence on record, it is clear that the offending vehicle was not registered as a transport vehicle under Section 147 of the MV Act and was registered only for agricultural purposes, therefore, its use was restricted to agricultural purposes. Further it is evident that Respondents No.1 & 2 have neither pleaded nor produced any evidence to show that the vehicle was being used for agricultural purposes. After considering the evidence available on record, the Tribunal held that Non-applicant No.3/appellant insurance company could, if at all, be held liable only in respect of Non-applicant No.2a, as there exists no contract of insurance between Non-applicant No.3 and Non-applicant No.2b, the owner of the trolley, therefore, Non-applicant No.3 cannot be fastened with any liability qua Non-applicant No.2b. It was held by the Tribunal that Non-applicant No.2a was using the offending vehicle in violation of the terms and conditions of the insurance policy, and the deceased was travelling in the trolley as a gratuitous passenger. A perusal of the premium schedule in Ex.D-2 clearly shows that no premium was paid to cover the risk of gratuitous passengers. Hence, the liability of Non-applicant No.3 does not arise under the insurance policy. However, the Tribunal further held that the tractor, owned by Non-applicant No.2a, was insured, while trolley, owned by Non-applicant No.2b, was a separately registered vehicle, which cannot run independently and can be used only when attached to a tractor. Since Non-applicant No.2a is the owner of tractor and that, there exists no contract of insurance between Non-applicant No.3 and Non-applicant No.2b, therefore, considering the evidence available on record and in the facts and circumstances of the case and also taking the support of judgment passed by the Supreme Court in the case of S. Ayyappan vs. United India Insurance Company Limited, reported in 2013 (7) SCC 62, the Tribunal held Non-applicant No.3/appellant herein liable to pay 50% of the compensation on behalf of Respondent No.2a, with liberty to recover the said amount from Non-applicants No.1 & 2a.

11. When the matter is examined in the light of decision in the case of Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others, (2018) 7 SCC 558, the finding of liability over the appellant/insurance company to the extent of 50%, recorded by the Tribunal is based on evidence available on record, which is neither perverse nor contrary to the record.

12. For the foregoing discussion, I do not find any illegality and infirmity in the impugned award, therefore, the appeal is liable to be dismissed and accordingly it is dismissed. No order as to costs.