Sri Shambhu Bag Vs. New India Assurance Company Limited - Court Judgment

Excerpt:
- ashim kumar banerjee, j.1. appellant was a labour working under the respondent no. 2 being the owner of the tractor having registration no. wb-41a/4497. he used to earn rs. 2,100.00 per month. on july 13, 2002 at about 12:30 he was proceeding towards bankura more travelling by the said tractor. the said tractor overturned sustaining severe injury to the appellant. ultimately he lost his left leg which was amputated. he was admitted in burdwan hospital. after his discharge from the hospital he took medical treatment from the outdoor department of the hospital. he claimed that he incurred expense to the extent of rs. 30,000.00-35,000.00 on account of medical treatment. during cross-examination the appellant deposed that a trailer was attached to the tractor at the time of accident. the insurance company denied their liability on the ground that the trailer did not have insurance cover. the tribunal ultimately assessed the compensation and directed the owner to pay the same by absolving the insurance company of any liability. the tribunal held that the trailer did not have insurance. hence, the appellant was not entitled to any compensation from the insurance company.2. being aggrieved, the appellant preferred the instant appeal which was heard by us on the above mentioned date.3. appearing for the appellant, mr. krishanu banik, learned counsel contended that the insurance policy was not disclosed before the tribunal. hence the tribunal should not have absolved the insurance company of its liability without looking into the insurance policy and considering its terms and conditions. mr. banik contended that there was no justification for the tribunal to absolve the insurance company of its liability.4. opposing the appeal mr. rajesh singh, learned counsel appearing for the insurance company contended that the trailer was not insured with the insurance company. hence, the injury caused to the appellant due to over-turn of the trailer could not attract any compensation from the insurance company. he further contended, in any event the vehicle was used for co-lateral purpose and not agricultural purpose. hence, the risk was not covered. he further contended that the tractor and/or trailer are goods vehicle, used for agricultural purpose. the appellant was a gratuitous passenger. hence, the insurance company had no liability on that score.5. mr. singh lastly contended that the tribunal ultimately held the owner responsible for payment of compensation. owner accepted the decision by not preferring any appeal. hence, such liability could not be shifted at the instance of the appellant.6. to support their contentions the parties cited the following decisions:i) national insurance company limited v. v. chinnamma and ors. reported in 2004 3 tac 577.ii) national insurance company limited v. bommithi subbhayamma and ors. reported in 2005 volume ii transport and accident cases page i.iii) oriental insurance company limited v. laxmanna (died) per l.rs. and anr. reported in : 2005 accident claims journal page 1532.iv) b.s.r.t.c. v. ranjana majhi and ors. reported in 2006 3 tac 1.7. in the case of bommithi subbhayamma (supra) the award passed by the tribunal was reversed by the high court questioning legality of the award as the victim was a gratuitous passenger in a goods vehicle. the apex court held that the compensation could only be recovered from the owner and not the insurance company. similarly, in the case of v. chinnamma and ors. (supra), in an accident involving tractor- trailer used for transportation for vegetable the apex court held that since it was not used for agricultural purpose the insurance company was not liable.8. in the instant case the tractor was involved in the accident. the victim was an employee of the owner of the tractor working as an agricultural labour under the owner. on a close reading of the evidence of the victim it does not appear to us that he was riding on the trailer and not the tractor. it is not clear from his evidence that he was on the trailer which did not have any insurance policy. hence, tribunal erred in observing so. there was no definite suggestion given to the claimant that he was on the trolley or the trailer, as the case may be, when the accident took place. the insurance company did not adduce any evidence. hence, giving a benefit of doubt, if any, the tribunal should have held in favour of the claimant making the insurance company responsible for payment of compensation.9. on perusal of the evidence as also exhibits it appears that the owner of the tractor made a written complaint with the police station that his tractor got over-turned to save a goat and as a result two of his labourers riding on the trailer attached to the tractor sustained injury. the owner did not come forward to support his statement made before the police. he did not even contest the claim. the claimant nowhere stated that he was in the trolley. similarly, there was no evidence that he was travelling on the tractor not used for agricultural purpose. no such suggestion was given by the insurance company during cross-examination. no evidence was led by the insurance company on that score. hence, benefit of doubt should be given in favour of the claimant.10. the appellant lost his leg at his prime age of twenty six years. it is true that he was declared physically disabled to the extent of 75 per cent. however, for all practical purpose he should be considered as a fully disabled person as he would be hardly of any help to any physical work. the tribunal already awarded compensation on that score. we do not find any scope of interference. we only observe that both the owners as well as insurance company are jointly and severally liable. in case insurance company pays the compensation they would at liberty to recover the same from the owner, if they are so entitled to in law.11. the insurance company would pay the compensation by account payee cheque drawn in favour of the claimant to be sent to his address by registered post with acknowledgement due.12. the judgment and order of the tribunal impugned herein is modified accordingly.13. lower court records be sent down at once.14. appeal is disposed of without any order as to costs.15. urgent xerox certified copy would be given to the parties, if applied for.16. i agree.