The Oriental Insurance Company Ltd. ...

vs Shiv Kumar And 3 Ors on 16 October, 2014

The Oriental Insurance Company Ltd. ... vs Shiv Kumar And 3

Ors on 16 October, 2014

Author: Vishnu Chandra Gupta

Bench: Vishnu Chandra Gupta

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Court No. - 21 Reserved

Case :- FIRST APPEAL FROM ORDER No. - 119 of 2004

Appellant :- The Oriental Insurance Company Ltd. Thru Branch Manager

Respondent :- Shiv Kumar And 3 Ors

Counsel for Appellant :- Anil Srivastava

Counsel for Respondent :- Vimal Kishore Verma,R.S. Tomar

Hon'ble Vishnu Chandra Gupta,J.

This First Appeal From Order under section 173 of the Motor Vehicles Act, 1988 (For short the
"Act") has been preferred by the appellant-insurance company against the judgment and award
dated 25.11.2003 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court
No.4, Lakhimpur Kheri (Hereinafter referred to as the "Tribunal") in Motor Accident Claim Petition
No. 87 of 2002 (Shiv Kumar Vs. Shyam Prakash and three others) presented under section 166 of
the Act by Shiv Kumar, the claimant for the injuries and disability on account of amputation of left
leg near knee joint, whereby compensation of Rs. 1,48,500/- with pendent lite and future interest at
the rate of Rs. 6% per annum was allowed.

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 The Oriental Insurance Company Ltd. ... vs Shiv Kumar And 3 Ors on 16 October, 2014

The appellant-insurance company has filed the instant appeal on the ground that injured was sitting
in a trolley attached with Tractor having registration no. U.P. 31-D/7505. The tractor was not used
for agricultural purposes at the time of accident when petitioner sustained injuries. As such, the
insurance company, the appellant is not liable to pay the compensation to the claimant. The liability
to pay compensation is only of owners of the offending vehicle Chandrabhal (respondent no.2),
Sewak Ram (respondents 3) and driver Shyam Prakash (respondent no. 1).

Heard Shri Anil Srivastava, learned counsel for the appellant, Sri Vimal Kishore Verma, learned
counsel for respondents 2,3 and 4 and Shri R.S. Tomar, learned counsel for the respondent-claimant
and also perused the record of this appeal as well as the record of the Tribunal.

It has been contended by the learned counsel for the appellant-insurance company that the
statement of P.W. 1 Shiv Kumar, injured is not believable as he in his statement deposed at one
place that after hitting him, the tractor's driver fled away from the spot, but at another place, he
deposed that tractor stopped on spot at the time of accident and the owners of the tractor requested
him that since the matter is of relationship, do not report to the police and they will bear all the
expenses of his treatment and also pay the expenses through out life. But neither they managed for
treatment nor given expenses to the claimant. When he recovered to some extent from injuries, he
lodged the report of this incident. In cross examination, the claimant gave explanation for not
lodging the first information report promptly, which is not acceptable at all. The owners and driver
of the offending vehicle are not only closely related to each other but also are equally related to the
injured. The case is of collusion in between the owners and claimant. Thus, the petition deserves to
be dismissed.

Normally, these defences are not available to the insurance company in absence of permission under
section 170 of the Act granted by the Tribunal. Before the Tribunal no such permission under
section 170 of the Act has been sought. Even otherwise in para 10 of the written statement filed by
the insurance company, it has been pleaded that for this alleged accident the injured himself was
liable and responsible as he contributed equally alongwith driver as he was sitting in tractor's
trolley. This shows that happening of the accident is not denied. The Tribunal on the basis of
evidence adduced by the parties recorded the findings that accident occurred when the injured was
going on foot and the tractor hit him on the public way.

D.W.2 Dharmendra Kumar, Investigator of Oriental Insurance company was examined by appellant.
He stated on oath that he went to village where the claimant resides and recorded the statements of
some villagers in writing which he filed alongwith report. These villagers told him that Shiv Kumar
was sitting in a tractor trolley with his leg outside the trolley and near village Hargaon the tractor
driver was taking it back. During this process, the rear portion of the trolley hit the wall, by which
injuries were sustained by Shiv Kumar. He also recorded the statement of Village Pradhan of Gram
Panchayat Dimhaura, who gave his statement, wherein it has been stated that Shiv Kumar met with
an accident when he had gone to village Gulauria on a tractor trolley, but no accident was occurred
with Shiv Kumar in village Babaganj.

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 The Oriental Insurance Company Ltd. ... vs Shiv Kumar And 3 Ors on 16 October, 2014

D.W. 2 Dharmendra Kumar himself is not a witness of the alleged accident. He recorded the joint
statement of some of the persons available on record of the Tribunal as paper no. 25 /44. It appears
to be the joint statements of several persons of village Taudakpur to this effect that Shiv Kumar in
the month of December, 2011 had gone to village Gulariya (near Hargaon) in connection with
Mundan ceremony in a tractor trolley. Shiv Kumar was sitting in the back of tractor trolley with legs
outside the trolley and when driver backed the tractor trolley, the rear portion of the trolley hit the
wall, as a result of which serious injuries caused to his left leg. He was got admitted in District
Hospital, Lakhimpur Kheri, where his left leg was amputated after 2-3 days during treatment.

Perusal of the joint statements reviles that none of the persons stated that accident was occurred
before them or they saw Shiv Kumar when accident occurred. Similarly paper no. 25/45 which is
certificate of Village Pradhan, Grampanchyat Dimhaura, Vikas Khand, Lakhimour Kheri Block to
the effect that Shiv Kumar had gone to village Gulariya in connection with Mundan ceremony in a
tractor trolley on 5.12.2001 where he received injuries in the accident and his left leg was amputated
due to those injuries.

Firstly, the statement which has been jointly taken of the alleged villagers, cannot be accepted in
evidence in absence of oral examination of any one of them who signed the document. Similar is the
position of certificate of the Village Pradhan . Secondly, from the perusal of those documents it does
not transpired that persons who signed the documents are eye witnesses of the accident. Therefore,
the evidence of D.W. 2 Dharmendra Kumar based on aforesaid documents cannot be taken into
consideration and is not sufficient to discard the evidence adduced by the injured himself.

It is pertinent to mention here that owners of the tractor in question and its driver categorically
stated that no accident has ever taken place with offending vehicle. They have not set up any case
that injured was sitting in the tractor or the accident was occurred as alleged by the insurance
company. Neither owners nor driver admitted in the pleadings or in statement on oath that injured
was sitting in tractor trolley.

Shyam Prakash D.W. 1 was also examined, who is son of the owner of the tractor in question and
driver of the same. Similar stand has been taken by him. The statement of Shyam Praksh has not
been accepted in view of version given by the injured.

It is true that in this case FIR has been lodged after more than five months from the date of accident
but merely lodging of the FIR with delay by itself is not sufficient to throw out the case of the
claimant. The claimant has filed documentary evidence in the form of discharge certificate issued by
the Ayush Nursing Home, Lakhimpur Kheri where he remain admitted after the accident till
7.12.2001. Doctor has issued Disability Certificate to the injured.

Neither the owners nor driver of the offending vehicle admit that injured was sitting in the tractor
trolley when he was going in connection with Mundan ceremony. The insurance company failed to
establish this fact that injured was sitting in the trolley attached with tractor at the time of alleged
accident and also failed to establish by any evidence that accident was occurred as stated and
pleaded by the appellant.

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 The Oriental Insurance Company Ltd. ... vs Shiv Kumar And 3 Ors on 16 October, 2014

So far as the terms and conditions of the breach of policy is concerned, it has been stated that tractor
could not be used for non agricultural purposes or for carrying the passengers. Carrying the
passengers amount to use of tractor with trolley as transport vehicle. Therefore, the insurance
company cannot be saddled with liability.

Second contention of the learned counsel for the insurance company is that tractor was attached
with trolley and was being used for carrying person. The same is converted into transport vehicle,
but the driving licence to drive possessed by driver was for light motor vehicle, so it cannot be a
valid licence to drive the transport vehicle.

I do not find any substance in the submission of the learned counsel for the insurance company for
the reason that it has not been established in this case that injured sustained injuries when he was
sitting in the trolley attached with tractor in question. Secondly the burden to prove the breach of
terms of the policy would be on the insurance company as held by the Division Bench of this Court
in United India Insurance Company Ltd. Vs. Smt. Kushma Devi and others 2008 (26) LCD 1752. In
this case, it is not in dispute that tractor was insured with appellant-insurance company. Admittedly
the tractor was insured for agricultural purposes. The Supreme Court in Nagashetty Vs. United
India Insurance Company Co. Ltd. and others 2001 SCC (Crl.) 1408 held that driving licence to drive
tractor would not be invalid merely because the driver was driving a tractor which had a trailer
attached to it and was being used for carrying goods at the time of accident. The Apex Court also
held that the tractor in such situation cannot be termed as a goods vehicle. Therefore, it cannot be
insisted that driver was competent to drive tractor must have a licence to drive the goods vehicle.

The appellant insurance company failed to establish that the vehicle in question at the time of
accident was not being used for agricultural purposes. It is not stated by Shiv Kumar, the claimant
that at the time of accident the tractor was attached with trolley. Neither the owners of the offending
vehicle stated anywhere that when the accident was occurred the tractor was attached with trolley
nor any evidence has been adduced by the insurance company, by which it could be established that
when accident was occurred, the tractor was attached with trolley used for carrying passengers.

In view of the above, I do not find any substance in the plea raised by the appellant-insurance
company with regard to breach of terms of policy.

No other point has been pressed.

Having considered all the facts and circumstances of the case, I find no substance in the appeal. It is
accordingly dismissed.

Statutory amount or any other amount under the impugned award, if deposited by the
appellant-insurance company with this Court, the same shall be remitted within a period of one
month from the date of this order. If the entire amount has not been deposited by the insurance
company under the impugned award, the same shall also be deposited within the aforesaid period
before Tribunal. The Tribunal shall disburse the amount under the impugned award to the claimant
in terms of the award.

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 The Oriental Insurance Company Ltd. ... vs Shiv Kumar And 3 Ors on 16 October, 2014

Dated:16.10.2014 GSY

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