Judgment:
Oral Judgment
1. This appeal is directed against the judgment and award dated 02.02.2000, passed by the Member, Motor Accident Claims Tribunal, Chandrapur in Motor Accident Claim Petition No.133/1992.
2. On 07.03.1992, the tractor trolley owned by original respondent no.2 (his LRs respondent no.(i) to (iv) herein) and driven by respondent no.1 met with an accident while transporting the stones. Parshuram, the deceased who was working as a labourer and traveling in the tractor trolley, sustained injuries and succumbed to them. The vehicle was insured with original respondent no.3 â appellant herein. The deceased left behind him widow and the minor son. They are the original petitioners and respondent nos.1 and 2 herein.
3. Respondent no.3 claimed that he was not negligent or rash while driving the vehicle. Respondent No.4, stated that he had obtained the policy to cover the liability arising in respect of injury or death of the labourer. According to him, the deceased was travelling in the tractor trolley as a labourer and therefore, the appellant â insurance company should discharge the liability, if, any saddled upon him. The appellant resisted the claim by pleading that the vehicle was being used for commercial purpose, although it was registered for agricultural purpose. It was averred that no extra premium was paid to cover the liability arising out of an injury or death caused to the labourer travelling in the vehicle. The policy only covers risk of the third party.
4. The Tribunal framed the following issues and recorded its findings, which are reproduced below:
| ISSUES | FINDINGS |
| 1. Do Petitioners prove that they are dependents and legal heirs of deceased Parshuram Jago Choudhary? | Yes |
| 2. Do they prove that Parshuram died in an accident of Tractor No.MXF8495 with trolley No.MTG6548, due to rash and negligent driving? | Yes |
| 3. Do they prove that the vehicles were insured with Respondent No.3? | Yes |
| 4. Does Respondent No.3 proves that Parshuram was travelling by the trolley in violation of Motor Vehicle Rules and in breach of Insurance Policy? If yes, whether Respondent No.3 is absolved from its liability? | No |
| 5. Are Petitioners entitled to get compensation?If yes, how much and from whom? | Yes,  Amount of Rs.1,00,000/- from All Respondents. |
| 6. What order? | As per final order |
6. Mr. Pophaly, the learned Counsel appearing for the appellant contended that the labourer travelling in a tractor trolley being not a 'third party' and no additional premium having been paid to cover such risk which is evident from Exhs.61 and 62, the learned Tribunal went wrong in holding that the appellant is liable to satisfy the award.
7. Mr. Badiye, the learned Counsel appearing for respondent Nos.1 and 2 and Mr. Malke, the learned Counsel appearing for respondent no.4, supported the judgment and award.
8. It is evident from the policy documents at Exhs.61 and 62 that no extra premium was paid to cover the liability arising out of an injury or death of a labourer travelling in the vehicle. Before adverting to the submissions advanced at bar, I shall deal with the decisions in case of New India Assurance Co. Ltd. V. Ansuya and others, reported in 1989 ACJ 400, relied upon by the Tribunal. It was also the case of death of a labourer who was being carried on the tractor trolley for loading and unloading goods carried in it. The learned Single Judge of the Andhra Pradesh High Court held that there is no prohibition under the Motor Vehicles Act to carry the coolies for loading or unloading operation in a vehicle which is registered for the purpose of agricultural operations. After considering the decision of Apex Court in case of Skandia Insurance Co. Ltd. V. Kokilaben Chandravadan and others, reported in 1987 ACJ 411 (SC), the learned Single Judge opined thus:
âTherefore, the Supreme Court has strictly construed the exclusionary clauses in the contract to elongate the object or the purpose, namely, to give benefit of the insurance to the third parties whose death or bodily injury has been occasioned on account of the user of the goods vehicles or passenger vehicles in a public place and the compensation is payable to the victims or the legal representatives of the deceased persons. The immediate question that emerges is whether the contract of insurance of the third parties includes the labour engaged by the owner of the vehicle for loading and unloading the sand for agricultural operations for which the policy was admittedly taken. Though Mr. Somayajulu, learned counsel, is right in contending that for travelling it is only the driver and the attendant for each tractor who is permitted under rule 302 read with rule 500 of the Motor Vehicles Rules and there is an implied prohibition against carrying any persons as passengers in the trailer-cum-tractor, but there is no implied prohibition for carrying the coolies or the labourers for agricultural operations. The very object of the insurance of the agricultural operations is to engage the tractor in the operation of agriculture. As an incident thereto, carrying the coolies or the labourers for agricultural operations is an integral part of the main purpose of agricultural operations. Therefore, when an accident has occurred in which one or some of the labourers or coolies engaged have sustained injuries or have died due to rash and negligent driving of the driver of the tractor, then it covers the third party risks. Obviously for that reason the policy is taken and it is not necessarily of any person or persons other than those who were travelling in the vehicle as incidental to the agricultural operations. If this construction is adopted, it would not only subserve the purpose of the contract of insurance but also the very object of carrying on the agricultural operations with the aid of the tractor towed with trailer. Any other construction would defeat the purpose of the insurance taken by the owner of the tractor-cum-trailer and also deprives the labourers or the coolies engaged in the agricultural operations who were carried by the trailer-cum-tractor for the purposeâ.
9. The aforesaid view is mainly proceeded on the ground that the labourer travelling in a trolley fills the character of 'third party' and since there is no prohibition for carrying coolie or labourer in a vehicle engaged for agricultural operations, the Court held that even an 'Act policy' would cover the risk to the labourer.
10. Shri Malke, the learned Counsel appearing for the respondent no.4 relied upon the decision in case of RagunathEknath Hivale V. Shardabai Karbhari Kale and others, reported in 1986 ACJ 460. In that case the truck loaded with basket of tomatoes was carrying 15 to 16 owners thereof. While trying to avoid collision with a jeep coming from the opposite direction the truck entered a nearby field and turned turtle and two persons walking on the road side came under the truck and died. The Tribunal exonerated the insurance company of the truck on the ground that the truck was carrying more than seven persons as passengers which is prohibited under Bombay Motor Vehicles Rules. After negativiting the finding the Division Bench of this Court held that the breach of the condition of the permit is not the same thing for which purpose it is issued. As far as 'third party' risk is concerned, the liability is being statutory and it cannot be overridden by the terms of the contract of insurance, between the parties. The aforesaid was a clear cut case of risk to the third party since the compensation was claimed for the death of the persons who were walking on the road.
11. The facts in the case of Skandia Insurance Co. Ltd. V. Kokilaben Chandravadan and others (supra), were that the truck driver had left the truck with engine in motion in charge of the cleaner who was not holding driving licence. The cleaner drove the truck and caused the accident. This was also a clear cut case of injury to the 'third party' and not to the occupant of the vehicle.
12. The definition of âthird partyâ occurring under Section 145 (g) of the Motor Vehicles Act is inclusive and includes the Government. The provisions of Section 146 make it clear that it is the duty on the part of the owner of the Motor Vehicle to obtain insurance policy against the third party risk and with effect from 14.11.1994, injury to the owner of goods or his authorised representative carried in the vehicle was also added. Then, as per the proviso to Section 147, the policy shall not be required to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than a liability arising under the Workmen's Compensation Act, 1923 in respect of death of, or bodily injury to, an employee engaged in driving the vehicle, or who is a conductor, if it is a public service vehicle or an employee being carried in a goods vehicle or to cover any contractual liability. Subsection (2) only sets down the limits of the policy.
13. In the case of Oriental Insurance Co. Ltd. Vs. Meena Variyal and others reported in (2007) 5 SCC 428, there was a death of a person travelling in a car owned by his master. Admittedly, no additional premium was paid to cover the persons other than third party. Their Lordship observed thus:
âThe object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficult to hold that the Insurance Company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmen's Compensation Act, 1923 and it is doubtful, on the case put forward by the claimant, whether the deceased could be understood as a workman coming within the Workmen's Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the Insurance Company is not liable to indemnify the insured in the case on handâ.
14. The next decision relied upon by Mr. Pophaly, the learned Counsel for the appellant is in the case of New India Assurance Co. Ltd. Vs. Sadanand Mukhi and Ors. reported in 2009(1) ALL MR 978. It was a case of death of son of the owner of motor cycle while driving the vehicle. It was observed thus:
âBy taking an 'act policy', the owner of a vehicle fulfills his statutory obligation as contained in Section 147 of the Act. The liability of the insurer is either statutory or contractual. If it is contractual its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paidâ. (emphasis mine)
15. In the case of United India Insurance Company Limited Vs. Suresh K.K. And another reported in (2008) 12 SCC 657, the claim was in respect of injury suffered by âcoolie workerâ when he was sitting by the side of the driver. The accident occurred because of rash and negligent driving by the driver of the vehicle. Their Lordship observed thus:
âThe insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision. But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goodsâ.
16. In the case of New India Assurance Co. Ltd. Vs. Asha Rani and others reported in (2003) 2 SCC 223, interpreting the proviso to Section 95(1) of the 1939 Act and Section 147 of the 1988 Act, their Lordship observed that there is a provision for compulsory coverage against the death or bodily injury to any passenger of âpublic service vehicleâ. It does not speak of any passenger in goods carriage. Therefore, the provisions of the 1988 Act do not enjoin the statutory liability on the owner of the vehicle to get his vehicle insured for any passenger travelling in a goods vehicle and the insurer would not be liable thereof.
17. The legal position that emerges is unless the risk to the employee/coolie travelling in a tractor trolley engaged for agricultural operations is covered under the policy, of course, on payment of additional premium, the statutory liability arising out of an accident resulting in an injury or death of such employee or coolie cannot be fastend on the insurer. In that view of the matter, the appellant â original respondent no.3 are entitled to be exonerated from the liability. However, the directions will have to be issued to the appellant-insurance company to pay the amount to the claimants and realise the same from the owner of the vehicle. In case of United India Insurance Company Limited Vs. Suresh K.K. and another (supra), it was observed thus:
âThe question which arises for our consideration, however, is keeping in view the fact that the accident took place on or about 13.08.1999, and further in view of the fact that the claimant was a coolie worker as to whether he would be in a position to realise the dues from the owner of the vehicle. We think not.
Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with a view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice.â
18. Appeal is allowed.
The judgment and award holding the appellant â original respondent no.3 jointly and severally liable along with others to satisfy the award is set aside. There shall be no order as to costs. However, the appellant shall satisfy the award at a first instance and may recover the amount from the owner of the vehicle.