Accident Case
adv. rajeev ( rajoo )
(Querist) 02 March 2010
This query is : Resolved
One of my colleagues has filed a MVC petition claiming the compensation for the death of agrl., coolie who was sitting in the Trailor attached to the tractor.
In this case Tractor belongs to one party and trailor belongs to another one, but the insurance company is same.
My colleague's contention is that tractor owner is liable to pay the compensation for the death of the coolie, but insurance co., advocate is arguing that trailor owner is different. Hence insurance co.,of the tractor is not liable to pay the compensation.
My advice is that trailor was used by the tractor owner and during the course of employment coolie died. Hence the tractor co., is liable to pay the compensation.
I need advise from the learned members. Please advise me to advise my collegue. If any rulings please quote.
Guest
(Expert) 02 March 2010
pls see the case of Calcutta High Court..........
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Mr. Justice Kalidas Mukherjee
F.M.A. 319 of 2004
Sri Shambhu Bag
-Versus-
New India Assurance Company Limited.
For the Appellant : Mr. Krishanu Banik
For the Respondent : Mr. Rajesh Singh
Heard on : August 25, 2009
Judgment on : September 1, 2009.
ASHIM KUMAR BANERJEE.J:
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.
Being aggrieved, the appellant preferred the instant appeal which was heard by
us on the above mentioned date.
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.
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. 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. To support their contentions
the parties cited the following decisions :- i) National Insurance Company
Limited VS- V. Chinnamma and Others reported in 2004, Volume-III, Transport and
Accident Cases, Page-577. ii) National Insurance Company Limited VS- Bommithi
Subbhayamma and Others reported in 2005, Volume-II, Transport and Accident
Cases, Page-I. iii) Oriental Insurance Company Limited VS- Laxmanna (died) per
L.Rs. and Another reported in 2005, Accident Claims Journal, Page-1532. iv)
B.S.R.T.C. VS- Ranjana Majhi & Others reported in 2006, Volume-III, Transport
and Accidents Cases, Page-1.
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 Others (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. 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.
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.
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.
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.
The judgment and order of the Tribunal impugned herein is modified
accordingly. Lower Court records be sent down at once.
Appeal is disposed of without any order as to costs.
adv. rajeev ( rajoo )
(Querist) 03 March 2010
Thanks ajitabh. But problem is judges always insist to produce the Our High Court decisions or supreme court decisions.
Any way thank you very much.
Guest
(Expert) 03 March 2010
sir I'll try to search supreme court judgements on this point. I also needed that judgement. similar fact involved in a case here i am claiments lawyer in MACT Claim. i am also searching.
Guest
(Expert) 03 March 2010
sir if you get the judgement then pls send me too. Thanks.
Kumar Thadhani
(Expert) 03 March 2010
Expert Mr AJITABH right quoted Calcutta High COURT JUDGEMENT.
adv. rajeev ( rajoo )
(Querist) 06 March 2010
I had one judgment. I dnt remember to whom I gave the digest. I am not recalling my memory. Immediately after getting it I will post it to you.
