# The Oriental Insurance Co. Ltd v. Smt. Tulsa & Ors

- **Citation:** (2022) 7 ILRA 548
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-17
- **Case number:** First Appeal From Order No. 500 of 2002
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-co-ltd-v-smt-tulsa-ors-48797
- **Pages:** 10

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 145(c), 147, 147(1)(b)(i) &
149: - Appeal by Insurance Company -
challenging the Award - seeking relieve
itself from liability to pay compensation
- deceased travelling on the board of a
tractor trolley & died when tractortrolley was turned-turtle due to rash &
negligent driving on a public road when
same was proceeded to the cremation
ground in the funeral rites - tribunal
shrifted the objection as taken by the
insurance company that tractor was
insured only for agricultural purposes
not for passenger vehicle - Awarded of
Rs. 78,000/- with 9% interest - Court
held that, insurers cannot be held liable
at all under the policy to satisfy the
award or indemnify the owner - finding
recorded by tribunal is patently flawed -
impugned award set-aside
- appeal
succeed
-
compensation
shall
be
recovered from the owners - insurer
stand discharged from its liability. (Para -
7, 8, 13, 14, 16, 17)

Appeal allowed. (E-11)

List of Cases cited: -

## Text

548 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In the circumstances, there is no
force whatsoever in the contention that the
appellant-Insurance Company raise in this
appeal. No other point was pressed.

In re. : FAFO No. 33 of 2016

24. This appeal is again by the
Insurance Company and arises out of the
claim relating to the death of Smt.
Dhanpatti Devi, the other victim of the
accident, who was riding the bicycle along
with her son, Suresh Kumar @ Lallu on
22.10.2013. The other details and issues
need not be gone into as the relevant facts
and the issue, on the basis of which the
award here has been sought to be
impeached, are the same as those involved
in the leading appeal. No additional point
has been pressed in this appeal by Mr.
Anchal Mishra, learned Counsel for the
appellant-Insurance Company.

25. In the result, both the appeals fail
and are dismissed with costs throughout.
The interim orders passed are hereby
vacated.
----------
(2022)07ILR A548
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.06.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 500 of 2002

The Oriental Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Tulsa & Ors. ...Respondents

Counsel for the Appellant:
Sri Pramod Kumar

Counsel for the Respondents:
Sri T.C. Seth, Sri P.K. Rai,Sri Prem
KumarSingh, Sri R.K. Dwivedi

Civil Law - Motor Vehicles Act, 1988 -
Sections 145(c), 147, 147(1)(b)(i) &
149: - Appeal by Insurance Company -
challenging the Award - seeking relieve
itself from liability to pay compensation
- deceased travelling on the board of a
tractor trolley & died when tractortrolley was turned-turtle due to rash &
negligent driving on a public road when
same was proceeded to the cremation
ground in the funeral rites - tribunal
shrifted the objection as taken by the
insurance company that tractor was
insured only for agricultural purposes
not for passenger vehicle - Awarded of
Rs. 78,000/- with 9% interest - Court
held that, insurers cannot be held liable
at all under the policy to satisfy the
award or indemnify the owner - finding
recorded by tribunal is patently flawed -
impugned award set-aside
- appeal
succeed
-
compensation
shall
be
recovered from the owners - insurer
stand discharged from its liability. (Para -
7, 8, 13, 14, 16, 17)

Appeal allowed. (E-11)

List of Cases cited: -

1. Oriental Insurance Co. Ltd.Vs Brij Mohan &
ors., (2007) 7 SCC 56

2. New India Assurance Co. Ltd. Vs Asha Rani,
(2003) 2 SCC 223 : 2003 SCC (Cri) 493 : (2002)
8 Supreme 594

3. New India Assurance Co. Vs Satpal Singh,
(2000) 1 SCC 237 : 2000 SCC (Cri) 130

4. National Insurance Co. Ltd. Vs Bommithi
Subbhayamma, (2005) 12 SCC 243

5. United India Insurance Co. Ltd. Vs Tilak
Singh, (2006) 4 SCC 404 : (2006) 2 SCC (Cri)
344

6. National Insurance Co. Ltd. Vs Baljit Kaur,
(2004) 2 SCC 1 : 2004 SCC (Cri) 370
7 All. The Oriental Insurance Co. Ltd. Vs. Smt. Tulsa & Ors.
549
7. National Insurance Co. Ltd. Vs Laxmi Narain
Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri)
142 : (2007) 4 Scale 36

8. Oriental Insurance Co. Ltd. Vs Meena Variyal,
(2007) 5 SCC 428 : (2007) 2 SCC (Cri) 527 :
(2007) 5 Scale 269

9. New India Assurance Co. Ltd. Vs Vedwati &
ors., (2007) 9 SCC 486

10. Oriental Insurance Co. Ltd. Vs Devireddy
Konda Reddy, (2003) 2 SCC 339 : 2003 SCC
(Cri) 540

11. National Insurance Co. Ltd. Vs Ajit Kumar,
(2003) 9 SCC 668 : 2003 SCC (Cri) 1915

12. New India Insurance Co. Vs Darshana Devi
& ors., (2008) 7 SCC 416

13. National Insurance C. Ltd. Vs Smt. Leela
alias Vimla, 2014 SCC OnLine All 16209

14. Mohan Kushwaha & ors. Vs Ghanshyam &
anr., 2011 SCC OnLine All 2570

15. United India Insurance Co. Ltd. Vs Serjerao,
2008 ACJ 254 (SC)

16. National Insurance Co. Ltd. Vs Vs
Chinnamma, 2004 ACJ 1909 (SC)

17. Oriental Insurance Co. Ltd. Vs Biddo Devi
(Deceased) & ors., 2018 SCC OnLine All 6027

(Delivered by Hon'ble J.J. Munir, J.)

1. This is an appeal by the Insurance
Company, arising out of the judgment and
award passed by the Motor Accident
Claims Tribunal/Additional District Judge,
Court No.2, Unnao dated 05.07.2002 in
Motor Accident Claim Petition No. 276 of
1999. The Insurance Company seeks to
relieve itself of the liability to pay the
compensation awarded.

2. On the 4th of November, 1999, the
deceased, Kali Shanker, accompanied one
Radhey Lal, a native of his village, was
proceeding to participate in the last rites of
the latter's mother, who had passed away.
The members of the funeral procession, if it
could be called that, boarded an attached
trolley to the tractor bearing Registration
No. UP-35/9751 in order to ferry the mortal
remains of Radhey Lal's mother to the
cremation ground. At about half past eleven
in the morning hours, as the tractor reached
a place called Gadan Khera within the local
limits of Police Station Kotwali Unnao,
close-by to Jagat Mohan Memorial School,
the tractor-trolley turned turtle. It happened
because of the driver's negligence. The
accident resulted in grievous injuries to
Kali Shanker, who succumbed by the time
he
was
conveyed
to
the
hospital.
Information in this regard was given to
Police Station Kotwali, Unnao. The Police
caused the dead body of Kali Shanker to be
subjected to autopsy on 05.11.1999. On the
6th of November, 1999, Kali Shanker's son,
Jagdish got a First Information Report
lodged regarding the incident. Chhota son
of Chetau, opposite party to the claim
petition, is the tractor owner. He died
pending the claim petition and, therefore,
his sons, Shivpal and Rajpal, were
substituted. Besides his sons, Lal Bahadur
son of Binda and Vishun son of Jagan were
also impleaded as opposite parties nos.4
and 5 - all four as co-owners in Chhota's
stead.

3. The Oriental Insurance Company
Limited, 249/1, Civil Lines, Unnao through
its Branch Manager are the the tractor's
insurers.
The
aforesaid
Insurance
Company, who shall hereinafter be referred
to as the 'insurers', are the appellants.

4. A joint written statement was filed
by respondent nos. 2 to 5 to the claim
petition, that is to say, the co-owners of the
550 INDIAN LAW REPORTS ALLAHABAD SERIES
offending tractor and one on behalf of the
insurers. It would be apposite to mention
that while alive, Chhota too had filed a
written statement.

5. The original owner, Chhota as well
as the succeeding co-owners took a stand
that the offending tractor was not involved
in the accident. That apart, they said that
the liability, if any, would be that of the
insurers.

6. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

(1) Whether on 04.11.1999 at
11:30 in the day near Jagat Mohan
Memorial
School,
tractor
bearing
Registration No. UP-35/9751 was driven at
high speed and negligently, in consequence
of which the tractor-trolley turned turtle,
leading to Kali Shanker's death?

(2) Whether at the time of the
aforesaid accident, the tractor driver had a
valid and effective driving licence?

(3) Whether at the time of the
aforesaid accident, the tractor and trolley
were insured with the insurers?

(4) Whether at the time of the
accident, the tractor and the trolley were
being operated in violation of the Motor
Vehicles Act?

(5) Whether the claimants are
entitled to any compensation and from
whom?

(6) Whether the claimants are
entitled to any relief and from whom?

7. There is not much quarrel between
parties about the factum of accident before
this Court, which was held by the Tribunal
to have resulted from the rash and negligent
driving of the tractor-trolley. On the second
issue, the Tribunal found that the driver had
a valid driving license, effective from
08.09.1999 to 02.11.2002. On the third
issue, the Tribunal noted that the insurers
had raised an objection that the tractor was
insured with them for the purpose of doing
agricultural work and the trolley was not at
all insured, rendering them not liable to pay
compensation. The Tribunal made a short
shrift of this objection, disposing it of with
the remark that the objection is not tenable
as the insurance cover note that has been
produced in original shows that at the time
of accident, the tractor was insured with the
insurers from 05.11.1998 to 04.11.1999.

8. While deciding Issue Nos. 4, 5 and
6, the Tribunal has dealt with the quantum
of compensation payable and determined it
at a sum of Rs. 78,000/- payable with
interest at the rate of 9% per annum from
the date of presentation of the claim
petition. The claimants have not preferred
any cross-objection or a separate appeal,
seeking enhancement of the quantum.

9. Heard Mr. Pramod Kumar, learned
Counsel for the insurers and Mr. Prem
Kumar Singh, learned Counsel for the
claimant-respondent nos. 1, 2 and 3.

10. The deceased was a passenger,
who was travelling on the tractor-trolley.
The trolley does not appear to have been
registered or insured as a separate vehicle
for carrying even goods. It could never
have been registered as a passenger vehicle
or insured as such. The policy covering the
tractor is a Kisan Package Insurance Policy,
which apparently limits the liability of the
insurers to third parties in case of death or
bodily injury to any person caused by or
7 All. The Oriental Insurance Co. Ltd. Vs. Smt. Tulsa & Ors.
551
arising out of the use of the tractor for
agricultural purposes. The tractor is neither
a passenger vehicle nor a goods vehicle.
The trolley was absolutely unregistered and
uninsured, as already said. In this case, the
deceased was travelling on the trolley to the
cremation ground to participate in the last
rites of Radhey Lal's mother. The tractor
was travelling on a public road. It was not
at all engaged in any kind of agricultural
operations. The deceased was certainly not
the owner or the driver of the tractor.

11. The question about the liability of
the
Insurance
Company
to
pay
compensation in the case of death of a
passenger travelling on a tractor-trolley
arose for consideration before the Supreme
Court in Oriental Insurance Co. Ltd. v.
Brij Mohan and others, (2007) 7 SCC 56.
It was held in Oriental Insurance Co. Ltd.
v. Brij Mohan (supra) :

"10. Furthermore, the respondent
was not the owner of the tractor. He was also
not the driver thereof. He was merely a
passenger travelling on the trolley attached to
the tractor. His claim petition, therefore,
could not have been allowed in view of the
decision of this Court in New India
Assurance Co. Ltd. v. Asha Rani [New India
Assurance Co. Ltd. v. Asha Rani, (2003) 2
SCC 223 : 2003 SCC (Cri) 493] wherein the
earlier decision of this Court in New India
Assurance Co. v. Satpal Singh [(2000) 1 SCC
237 : 2000 SCC (Cri) 130] was overruled. In
Asha Rani [New India Assurance Co. Ltd. v.
Asha Rani, (2003) 2 SCC 223 : 2003 SCC
(Cri) 493] it was, inter alia, held : (SCC p.
235, paras 25-27)

"25. Section 147 of the 1988 Act,
inter alia, prescribes compulsory coverage
against the death of or bodily injury to any
passenger of ''public service vehicle'. Proviso
appended thereto categorically states that
compulsory coverage in respect of drivers
and conductors of public service vehicle and
employees carried in a goods vehicle would
be limited to the liability under the
Workmen's Compensation Act. It does not
speak of any passenger in a ''goods carriage'.

26. In view of the changes in the
relevant provisions in the 1988 Act vis-à-vis
the 1939 Act, we are of the opinion that the
meaning of the words ''any person' must also
be attributed having regard to the context in
which they have been used i.e. ''a third party'.
Keeping in view the provisions of the 1988
Act, we are of the opinion that as the
provisions thereof do not enjoin any statutory
liability on the owner of a vehicle to get his
vehicle insured for any passenger travelling
in a goods vehicle, the insurers would not be
liable therefor.

27. Furthermore, sub-clause (i) of
clause (b) of sub-section (1) of Section 147
speaks of liability which may be incurred by
the owner of a vehicle in respect of death of
or bodily injury to any person or damage to
any property of a third party caused by or
arising out of the use of the vehicle in a
public place, whereas sub-clause (ii) thereof
deals with liability which may be incurred by
the owner of a vehicle against the death of or
bodily injury to any passenger of a public
service vehicle caused by or arising out of the
use of the vehicle in a public place."

(See also National Insurance Co.
Ltd. v. Bommithi Subbhayamma [(2005) 12
SCC 243] and United India Insurance Co.
Ltd. v. Tilak Singh [(2006) 4 SCC 404 :
(2006) 2 SCC (Cri) 344] .)

11. Although the effect of 1994
amendment in the Motor Vehicles Act did
not call for consideration in Asha Rani
552 INDIAN LAW REPORTS ALLAHABAD SERIES
[New India Assurance Co. Ltd. v. Asha
Rani, (2003) 2 SCC 223 : 2003 SCC (Cri)
493], a three-Judge Bench of this Court had
the occasion to consider the said question
in National Insurance Co. Ltd. v. Baljit
Kaur [(2004) 2 SCC 1 : 2004 SCC (Cri)
370] in the following terms : (SCC pp. 7-8,
paras 17-19)

"17. By reason of the 1994
amendment what was added is ''including
owner of the goods or his authorised
representative carried in the vehicle'. The
liability of the owner of the vehicle to
insure it compulsorily, thus, by reason of
the aforementioned amendment included
only the owner of the goods or his
authorised representative carried in the
vehicle besides the third parties. The
intention of Parliament, therefore, could not
have been that the words ''any person'
occurring in Section 147 would cover all
persons who were travelling in a goods
carriage in any capacity whatsoever. If such
was the intention, there was no necessity of
Parliament to carry out an amendment
inasmuch as the expression ''any person'
contained in sub-clause (i) of clause (b) of
sub-section (1) of Section 147 would have
included the owner of the goods or his
authorised
representative
besides
the
passengers who are gratuitous or otherwise.

18. The observations made in this
connection by the Court in Asha Rani case
[New India Assurance Co. Ltd. v. Asha
Rani, (2003) 2 SCC 223 : 2003 SCC (Cri)
493] to which one of us, Sinha, J., was a
party, however, bear repetition : (SCC p.
235, para 26)

''26. In view of the changes in the
relevant provisions in the 1988 Act vis-àvis the 1939 Act, we are of the opinion that
the meaning of the words ''any person' must
also be attributed having regard to the
context in which they have been used i.e. ''a
third party'. Keeping in view the provisions
of the 1988 Act, we are of the opinion that
as the provisions thereof do not enjoin any
statutory liability on the owner of a vehicle
to get his vehicle insured for any passenger
travelling in a goods vehicle, the insurers
would not be liable therefor.'

19. In Asha Rani [New India
Assurance Co. Ltd. v. Asha Rani, (2003) 2
SCC 223 : 2003 SCC (Cri) 493] it has been
noticed that sub-clause (i) of clause (b) of
sub-section (1) of Section 147 of the 1988
Act speaks of liability which may be
incurred by the owner of a vehicle in
respect of death of or bodily injury to any
person or damage to any property of a third
party caused by or arising out of the use of
the vehicle in a public place. Furthermore,
an owner of a passenger-carrying vehicle
must pay premium for covering the risks of
the passengers travelling in the vehicle. The
premium in view of the 1994 amendment
would only cover a third party as also the
owner of the goods or his authorised
representative and not any passenger
carried in a goods vehicle whether for hire
or reward or otherwise."

12. Interpretation of the contracts
of insurance in terms of Sections 147 and
149 of the Motor Vehicles Act came up for
consideration recently before a Division
Bench of this Court in National Insurance
Co. Ltd. v. Laxmi Narain Dhut [(2007) 3
SCC 700 : (2007) 2 SCC (Cri) 142 : (2007)
4 Scale 36] wherein it was held : (SCC p.
714, paras 23-24)

"23[24]. As noted above, there is
no contractual relation between the third
party and the insurer. Because of the
statutory intervention in terms of Section
7 All. The Oriental Insurance Co. Ltd. Vs. Smt. Tulsa & Ors.
553
149, the same becomes operative in essence
and
Section
149
provides
complete
insulation.

24[25]. In the background of the
statutory provisions, one thing is crystal
clear i.e. the statute is beneficial one qua
the third party. But that benefit cannot be
extended to the owner of the offending
vehicle. The logic of fake licence has to be
considered differently in respect of the
third party and in respect of own damage
claims."

It was further observed : (SCC
pp. 718-19, paras 33-35)

"33[36]. It is also well settled that
to arrive at the intention of the legislation
depending on the objects for which the
enactment is made, the court can resort to
historical,
contextual
and
purposive
interpretation leaving textual interpretation
aside.

34[37]. Francis Bennion in his
book Statutory Interpretation described
''purposive interpretation' as under:

''A purposive construction of an
enactment is one which gives effect to the
legislative purpose by--

(a) following the literal meaning
of the enactment where that meaning is in
accordance with the legislative purpose, or

(b) applying a strained meaning
where the literal meaning is not in
accordance with the legislative purpose.'

35[38]. More often than not,
literal interpretation of a statute or a
provision of a statute results in absurdity.
Therefore, while interpreting statutory
provisions, the courts should keep in mind
the objectives or purpose for which statute
has been enacted. Justice Frankfurter of US
Supreme Court in an article titled as ''Some
Reflections on the Reading of Statutes' (47
Columbia Law Review 527), observed
that,''legislation has an aim, it seeks to
obviate some mischief, to supply an
adequacy, to effect a change of policy, to
formulate a plan of Government. That aim,
that policy is not drawn, like nitrogen, out
of the air; it is evidenced in the language of
the statutes, as read in the light of other
external manifestations of purpose.' "

(See also Oriental Insurance Co.
Ltd. v. Meena Variyal [(2007) 5 SCC 428 :
(2007) 2 SCC (Cri) 527 : (2007) 5 Scale
269] .)

12. The question whether a passenger
travelling in a goods vehicle was a third
party fell for consideration of the Supreme
Court in New India Assurance Co. Ltd. v.
Vedwati and others, (2007) 9 SCC 486,
where it was held:

"6. "4. This Court had occasion to
deal with cases of passengers travelling in
goods vehicles which met with accident
resulting in death of such person or bodily
injury.
Such
cases
belong
to
three
categories i.e. (1) those covered by the old
Act; (2) those covered by the Act; and (3)
those covered by amendment of the Act in
1994 by the Motor Vehicles (Amendment)
Act, 1994 (hereinafter referred to as ''the
Amendment Act').

5. The present appeals belong to
the second category.

6. In Satpal Singh case [(2000) 1
SCC 237 : 2000 SCC (Cri) 130] this Court
proceeded on the footing that provisions of
554 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 95(1) of the old Act are in pari
materia with Section 147(1) of the Act, as it
stood prior to the amendment in 1994.

7. On a closer reading of the
expressions ''goods vehicle', ''public service
vehicle', ''stage carrier' and ''transport
vehicle' occurring in Sections 2(8), 2(25),
2(29) and 2(33) of the old Act with the
corresponding provisions i.e. Sections
2(14), 2(35), 2(40) and 2(47) of the Act, it
is
clear
that
there
are
conceptual
differences. The provisions read as follows:

Old Act

''2. (8) "goods vehicle" means any
motor vehicle constructed or adapted for
use for the carriage of goods, or any motor
vehicle not so constructed or adapted when
used for the carriage of goods solely or in
addition to passengers;

***

(25) "public service vehicle"
means any motor vehicle used or adapted to
be used for the carriage of passengers for
hire or reward, and includes a motorcab,
contract carriage, and stage carriage;
***

(29) "stage carriage" means a
motor vehicle carrying or adapted to carry
more than six persons excluding the driver
which carries passengers for hire or reward
at separate fares paid by or for individual
passengers either for the whole journey or
for stages of the journey;

***

(33) "transport vehicle" means a
public service vehicle or a goods vehicle;'

The Act (New Act)

''2. (14) "goods carriage" means
any motor vehicle constructed or adapted
for use solely for the carriage of goods, or
any motor vehicle not so constructed or
adapted when used for the carriage of
goods;

***

(35) "public service vehicle"
means any motor vehicle used or adapted to
be used for the carriage of passengers for
hire or reward, and includes a maxicab, a
motorcab, contract carriage, and stage
carriage;

***

(40) "stage carriage" means a
motor vehicle constructed or adapted to
carry more than six passengers excluding
the driver for hire or reward at separate
fares paid by or for individual passengers,
either for the whole journey or for stages of
the journey;

***

(47) "transport vehicle" means a
public service vehicle, a goods carriage, an
educational institution bus or a private
service vehicle;'

(emphasis in original)

8. ''Liability' as defined in Section
145(c) of the Act reads as follows:

''145. (c) "liability", wherever
used in relation to the death of or bodily
injury to any person, includes liability in
respect thereof under Section 140;'

9.
Third-party
risks
in
the
background of vehicles which are the
7 All. The Oriental Insurance Co. Ltd. Vs. Smt. Tulsa & Ors.
555
subject-matter of insurance are dealt with
in Chapter VIII of the old Act and Chapter
XI of the Act. Proviso to Section 147 [of
the Act] needs to be juxtaposed with
Section 95 of the old Act. Proviso to
Section 147 of the Act reads as follows:

''Provided that a policy shall not
be required

(i) 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 (8 of 1923), in respect of the
death of, or bodily injury to, any such
employee--

(a)
engaged
in
driving
the
vehicle, or

(b) if it is a public service vehicle
engaged as a conductor of the vehicle or in
examining tickets on the vehicle, or

(c) if it is a goods carriage, being
carried in the vehicle, or

(ii) to cover any contractual
liability.'

It is of significance that the
proviso appended to Section 95 of the old
Act contained clause (ii) which does not
find place in the new Act. The same reads
as follows:

''(ii) except 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, to
cover liability in respect of the death of or
bodily injury to persons being carried in or
upon or entering or mounting or alighting
from the vehicle at the time of the
occurrence of the event out of which a
claim arises,'

The difference in the language of
''goods vehicle' as appearing in the old Act
and ''goods carriage' in the Act is of
significance. A bare reading of the
provisions makes it clear that the legislative
intent was to prohibit goods vehicle from
carrying any passenger. This is clear from
the expression ''in addition to passengers' as
contained in the definition of ''goods
vehicle' in the old Act. The position
becomes
further
clear
because
the
expression used is ''goods carriage' is solely
for the carriage of ''goods'. Carrying of
passengers in a goods carriage is not
contemplated in the Act. There is no
provision similar to clause (ii) of the
proviso appended to Section 95 of the old
Act prescribing requirement of insurance
policy. Even Section 147 of the Act
mandates compulsory coverage against
death of or bodily injury to any passenger
of ''public service vehicle'. The proviso
makes it further clear that compulsory
coverage
in
respect
of
drivers
and
conductors of public service vehicle and
employees carried in goods vehicle would
be limited to liability under the Workmen's
Compensation Act, 1923 (in short ''the WC
Act'). There is no reference to any
passenger in ''goods carriage'.

10. The inevitable conclusion,
therefore, is that provisions of the Act do
not enjoin any statutory liability on the
owner of a vehicle to get his vehicle
insured for any passenger travelling in a
goods carriage and the insurer would have
no liability therefor.
556 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Our view gets support from a
recent decision of a three-Judge Bench of
this Court in New India Assurance Co. Ltd.
v. Asha Rani [(2003) 2 SCC 223 : 2003
SCC (Cri) 493 : (2002) 8 Supreme 594] in
which it has been held that Satpal Singh
case [(2000) 1 SCC 237 : 2000 SCC (Cri)
130] was not correctly decided. That being
the position, the Tribunal and the High
Court were not justified in holding that the
insurer had the liability to satisfy the
award."

This
position
was
also
highlighted in Oriental Insurance Co. Ltd.
v. Devireddy Konda Reddy [(2003) 2 SCC
339 : 2003 SCC (Cri) 540] , SCC pp. 34143, paras 4-11. Subsequently also in
National Insurance Co. Ltd. v. Ajit Kumar
[(2003) 9 SCC 668 : 2003 SCC (Cri) 1915]
, in National Insurance Co. Ltd. v. Baljit
Kaur [(2004) 2 SCC 1 : 2004 SCC (Cri)
370] and in National Insurance Co. Ltd. v.
Bommithi Subbhayamma [(2005) 12 SCC
243] the view in Asha Rani case [(2003) 2
SCC 223 : 2003 SCC (Cri) 493 : (2002) 8
Supreme 594] was reiterated."

13. Now, Vedwati (supra) was a case
relating to a goods vehicle. The case of a
tractor is all the more different and the
insurers, by no means, can be held liable to
indemnify the owner for an injury sustained by
a person travelling on a tractor as a passenger;
or the trolley attached to the tractor. The same
view was reiterated by the Supreme Court in
New
India
Insurance
Company
v.
Darshana Devi and others, (2008) 7 SCC
416, where the deceased was a person
travelling on the tractor's mudguard, that was
ferrying
a
consignment
of
Safeda
to
Hoshiarpur.

14. The aforesaid view of the law
has been followed by this Court in
National Insurance Company Ltd. v.
Smt. Leela alias Vimla, 2014 SCC
OnLine All 16209, which was also a
fatal accident, where the deceased was
travelling on a tractor. It was held that a
passenger travelling on a tractor, which is
not a transport vehicle but one that can be
used for agricultural purpose alone,
would not make the Insurance Company
liable to indemnify the owner for the
compensation awarded in case of death of
a passenger. To like effect is the decision
of this Court in Mohan Kushwaha and
others v. Ghanshyam and another,
2011 SCC OnLine All 2570, where it
was held:

"9.
The
argument
has
no
substance inasmuch as it is settled that a
tractor is not a transport vehicle and can
only be used for agricultural purposes. It
cannot carry passengers.

10. It is equally settled that
tractor and trolley are two different motor
vehicles
and
have
to
be
insured
separately. The trolley in the present case
was not insured.

11. In Oriental Insurance Co. Ltd.
v. Brij Mohan, 2007 ACJ 1909 (SC), the
Supreme Court held that as the tractortrolley was not insured in addition to the
tractor and the tractor was not being used
for agricultural purposes for which it was
insured, the claim of the labourer travelling
in the trolley on being injured in an
accident was not maintainable against the
insurance company and the owner of the
vehicle was liable for the compensation.
The aforesaid decision was followed by the
Apex Court in United India Insurance Co.
Ltd. v. Serjerao, 2008 ACJ 254 (SC). It was
held that liability regarding labourers
travelling in trolleys is only upon the owner
7 All. Rajesh Kumar Vs. Smt. Nanhakai & Ors.
557
of
tractor-trolley
and
the
insurance
company is not liable to indemnify the loss.

12.
Similar
view
has
been
expressed by the Apex Court in National
Insurance Co. Ltd. v. V. Chinnamma, 2004
ACJ 1909 (SC). In the said case the tractor
and the trolley attached to it were used for
transporting vegetables for sale in the
market and not for agricultural purposes. It
was held that the tractor was meant to be
used for agricultural purposes. It cannot be
used as a transport vehicle. The trailer or
the trolley attached to the tractor would
also be required to be used for agricultural
purposes unless registered otherwise. In
view of aforesaid facts and cir cumstances,
there is no force in the appeal and the same
is dismissed as devoid of merit."

15. The same principle has been
followed in a more recent decision of this
Court in Oriental Insurance Company
Ltd. v. Biddo Devi (Deceased) and
others, 2018 SCC OnLine All 6027.

16. Bearing in mind the fact that the
deceased was travelling on board a tractortrolley on a public road, proceeding to the
cremation ground to participate in the
funeral rites of Radhey Lal's mother, it was
certainly not a case of an injury or death
sustained by a third party in the course of
use of the tractor for an agricultural
purpose. The insurers cannot be held liable
at all under the policy to satisfy the award
or indemnify the owner. The finding
recorded by the Tribunal, therefore, on
Issue No. 3 is patently flawed and liable to
be set aside.

17. In the result, this appeal succeeds
and is allowed. The impugned award dated
05.07.2002 passed by the Tribunal is
modified.
It
is
ordered
that
the
compensation awarded shall be recoverable
from the owners. The insurers shall stand
discharged of their liability. The statutory
deposit of Rs. 25,000/- made in this appeal
shall be permitted to be withdrawn by the
insurers.

18. Costs easy.
----------
(2022)07ILR A557
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.06.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 509 of 2013

Rajesh Kumar ...Appellant
Versus
Smt. Nanhakai & Ors. ...Respondents

Counsel for the Appellant:
Sri Ashish Verma, Sri Rajesh Kumar Shukla,
Sri Shakeel Ahmad Ansari

Counsel for the Respondents:
Sri Rajesh Trivedi, Sri Subash Chandra
Gulati

Civil Law - Motor Vehicles Act, 1988 -
Section 173 - Indian Penal Code, 1860 -
Sections 337, 338, 304 & 427- Civil
Procedure Code, 1908 - Order XLI , Rule
27 - Owner's Appeal - Award - 'hit & run'
case - Insurance company taken Plea (i)
'Non-joinder
of
necessary
party'
(ii)
claimants are fails to supplied the cover
note or the policy, driving licences (DL) as
well as copies of the FIR, charge-sheet,
site plane, injury report, post-mortem
report etc (iii) Motorcycle was driven by a
person
different
from
the
owner
-
Application to admit additional evidence -
Tribunal
decided
the
question
of
admissibility of a Photostat copy of the DL
or the insurance Policy in favour of the
insurers - and relived the insurers from