Judgment:
A.S. Tripathi, J.
1. These two appeals arise out of the same judgment and award dated 22.11.1994 passed by the Motor Accidents Claims Tribunal, Shivpuri, whereby the Tribunal has awarded compensation to the extent of Rs. 82,000/- against the owner of the vehicle and the insurance company. The liability of the insurance company was limited to Rs. 50,000/- according to law. Rest of the amount was to be paid by the owner of the vehicle involved in the accident.
2. Facts of the case are that on 14.9.86, the tractor No. CPW 9504 was being taken for bringing bajri, a commercial purpose. The deceased Sarupibai, wife of the claimant Raghuvar was taken on the same tractor as a labourer on contract to load bajri at a particular spot. On the way, while going towards that spot, Sarupibai fell down from the tractor. The wheels of the tractor crushed her and she died on the spot. A claim of Rs. 3,20,000/- was made by the husband of the deceased. The same was contested by the owner, driver and the insurance company. The Tribunal framed necessary issues and held that according to fair calculation, the claimant was entitled to Rs. 82,000/- as compensation. Rs. 72,000/- was against the loss of life and Rs. 10,000/- was for mental agony and consortium.
3. M.A. No. 77 of 1995 was filed by the owner and driver of the vehicle who are father and son. The other appeal M.A. (MM) No. 84 of 1995 was filed by the insurance company. These two appeals are connected. They are taken up together and are being disposed of by this common judgment. M.A. No. 77 of 1995 shall be the leading case.
4. The first question raised in these appeals was as to whether the accident had taken place on account of the rash and negligent driving of the driver or it was due to the contributory negligence of the deceased herself.
5. On this point, the Tribunal has given a categorical finding that a number of labourers were being taken on that tractor. One of them Sarupibai fell down from the tractor and was crushed under the wheels of the tractor and on that count her death had occurred in view of the fact that the wheels of the tractor crushed her when she fell down from the tractor. Falling of a person and being crushed under the wheels of the tractor itself indicates that there was a rash and negligent driving by the driver of the tractor. If a person falls down from a tractor, it is not likely that the person is to be crushed by the wheels of the tractor. Merely falling would have been a different case. But since the wheels of the tractor had crushed the deceased and the deceased died on the spot, it was definitely a case of rash and negligent driving by the driver.
6. Attention of this Court was drawn to the fact that the driver of the tractor was tried for a criminal offence under Section 304A, Indian Penal Code and that case ended in acquittal in S.T. No. 131 of 1989. Judgment of S.T. No. 131 of 1989 is filed on record in which benefit of doubt has been given to the accused in view of the fact that Sarupibai fell down from the tractor that could be by her own mistake, drowsiness or inadvertence. The findings recorded in the said sessions trial, however, were not assailed in appeal and it had become final. The findings recorded in the said sessions trial only have given benefit of doubt to the accused. That is not binding upon the Claims Tribunal to accept the same as such. The Claims Tribunal has assessed the facts and the evidence led in the claim case on their merits and came to the conclusion that rash and negligent driving by the driver was proved on record.
7. Reference was made to the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), in which it was held by the Supreme Court that:
The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.
8. In the case of N.K.V. Bros. (P) Ltd. v. M. Karumai Animal 1980 ACJ 435 (SC), it was held that:
The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The requirement of culpable rashness under Section 304A, Indian Penal Code is more drastic than negligence sufficient under the law of Torts to create liability.
9. This Court took similar view in the case of Bhagwant Singh v. Ram Pyari Bai 1991 ACJ 1115 (MP).
10. The principle of law is that the findings recorded in the criminal trial for the offence punishable under the Indian Penal Code have no bearing on the findings recorded by the Claims Tribunal, to assess negligence on the part of the driver for awarding compensation. Thus the Tribunal was fully justified in holding upon independent evidence that the tractor was being driven rashly and negligently at the time of the accident and on that count the death of Sarupibai had taken place. The fact that Sarupibai was said to have fallen down from the tractor and was crushed under the wheels of the tractor on the spot, itself speaks that it was a case of rash and negligent driving. The finding of the Tribunal on this point is, therefore, confirmed.
11. On the point of compensation, the Tribunal had held that Sarupibai was a labourer. The fact is not disputed that she was being taken on the tractor for the purpose of labour work to a particular spot, from where bajri was to be loaded on that tractor-trolley. The Tribunal has assessed the daily income of the deceased between Rs. 15/- and Rs. 20/- per day. The daily income of the deceased is quite fair and justified on record during the period of 1986, when the accident took place. The wages of a labourer were certainly within that ambit and there is no reason to differ with the Tribunal in respect of the wages assessed of the deceased to be between Rs. 15/- and Rs. 20/- per day. On that assessment, the Tribunal for the loss of life, holding that the age of the deceased was 18 years at the time of the accident on fair calculation applying the earnings to be Rs. 20/- per day which was taken to be Rs. 600/- per month and by applying the multiplier of 12, granted Rs. 72,000/- towards loss of life. Rs. 5,000/- were granted for mental agony and Rs. 5,000/- for the loss of company, which was reasonable and fair in the circumstances of the case. On the quantum of compensation, I do not find any reason to differ from the Tribunal in respect of the manner of assessment and the amount so assessed. There is nothing on record to indicate that any more or less amount could be assessed taking into consideration the age and the nature of job which the deceased was performing at the time of the accident. The total amount of Rs. 82,000/- awarded by the Tribunal is fully justified on record and the same is confirmed.
12. Now on the point of limited liability fixed for the insurance company to the extent of Rs. 50,000/-, learned Counsel for the driver and owner urged that the liability of the insurance company could not be limited even under the old Act and the entire amount should have been directed to be paid by the insurance company.
13. The provisions of Section 95(2)(b)(i) of the Motor Vehicles Act, 1939 were brought to the notice of this Court which are said to be applicable to the facts of the present case.
14. It was urged that at the time of the accident, the tractor and trolley were being taken to a particular spot for bringing bajri, which is not an agricultural purpose. It was obviously a commercial purpose for which labourers were being taken, one of them Sarupibai met with the accident.
15. The provisions of Section 95(2)(b) are quoted below:
where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,-
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger.
16. The words 'where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment', clearly indicate that the deceased was being carried on the vehicle in pursuance of a contract of employment, which was for loading bajri on the trolley of tractor at the time of the accident. In this situation, the amendment under Section 95(2)(b)(i) was that, in respect of persons other than passengers carried for hire or reward, a limit of Rs. 50,000/- in all. In the facts of the present case, the deceased was being carried for hire and she was not a passenger as defined under the Act. The words 'contract of employment' used in Section 95(2)(b) and the words used for hire and reward include persons being taken on the carrier for the purpose of employment as labourers in respect of some employment which does not fall in the category of passenger. But at the same time, the persons being carried or hired for such employment, the liability of the insurance company is limited to Rs. 50,000/- in all under the old Act which was applicable at the time of the accident.
17. Learned counsel for the owner and driver of the vehicle placed reliance on the cases of Prabhuvati Sharma v. Brijmohan Parihar 1990 ACJ 399 (MP); New India Assurance Co. Ltd. v. Darshan Singh 1992 ACJ 533 (Delhi); Oriental Insurance Co. Ltd. v. Dulari Devi 1995 ACJ 9 (Patna); and Krishan Lal v. Mohd. Din 1993 ACJ 907 (Delhi); on the point that the limited liability of the insurance company could not be inferred in view of the fact that a tractor was not a goods carrier or a passenger carrier. The question of liability in those cases was considered on the basis of the insurance policy and the facts raised in those cases are entirely different. In those cases the insurance policy was not taken into consideration and therefore limited liability could not be taken as pleaded by the insurance company. But in the present case, the insurance policy is filed on record which has been proved and the plea taken by the insurance company was legal that its liability is limited.
18. Learned counsel for the owner and driver of the vehicle further argued that the insurance company had neither pleaded nor taken this point before the Tribunal that its liability is limited in respect of the accident, even if the accident is proved. On that ground, counsel for the owner and driver of the vehicle argued that limited liability fixed by the Tribunal is not in accordance with law. He placed reliance on the case of United India Insurance Co. Ltd. v. Shamsher Singh 1994 ACJ 366 (J&K;). In that case, it was held that when a plea was not at all taken for limited liability before the Tribunal, the same could not be taken later on under Section 95 of the Motor Vehicles Act. Wherever there is a limited liability provided for the insurance company, specific plea has to be taken by the company, proper issues be framed, evidence be recorded and only then the Tribunal can record a finding in respect of the limited liability of the insurance company. This is not the case before me. The Tribunal has recorded a categorical finding in respect of limited liability of the insurance company in view of the provisions of the old Act under Section 95(2)(b). Issues were already there as issue Nos. 7, 8 and 9, which call for the Tribunal to record a finding in respect of the quantum of liability to be paid and from whom it was to be recovered. The insurance company has already taken a plea that the company was not at all liable for payment of compensation in this accident, as the insurance policy did not cover carrying third person on the tractor. The policy only covers use of the tractor for agricultural purpose. But the clauses mentioned in the insurance policy also indicate that even the tractor-trolley can be used for bringing bajri which can always be inferred to be used for agricultural purpose. Bajri is such, which is mostly used in villages for putting on the med of fields, preparing fodder pots for cattle and other miscellaneous work.
19. Lastly, learned Counsel for the insurance company placed reliance on the case of Sajjan Singh Laxman Singh v. Phoolibai 1993 ACJ 586 (MP). In that case, brother A.G. Qureshi, J. held that if the policy covers only the tractor and trolley and its use only for agricultural purposes, then when the vehicle is used for transporting manure for commercial purpose, the same was not covered under the policy and there will be no liability of the insurance company. Facts of the present case are entirely different than the facts of the case referred to above. In that case the trolley was being used for transporting manure by a third party and that was taken to be not for agricultural purpose. In this case, the owner of the vehicle himself was using this tractor and trolley for bringing bajri for agricultural purpose. Bajri is commonly used by agriculturists for fastening the med of fields during rainy season, or protecting water or to prepare fodder pots for cattle, etc. Therefore, in this case, it could not be said that the vehicle was used by the third person for commercial purpose. It was being used at the time of the accident by the owner of the vehicle simply for bringing bajri obviously for agricultural purpose. Therefore, the case relied by the learned Counsel for the insurance company is not applicable to the facts of the present case.
20. The result is that the judgment and award of the Claims Tribunal is fully justified and is based on the evidence recorded in accordance with law. No interference is called for by way of these two appeals. These appeals fail and they are dismissed. The parties are directed to bear their own costs of these appeals.
21. Let a copy of this judgment be placed on the record of Misc. Appeal (MM No. 84 of 1995), which shall govern disposal of that appeal as well.