HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- FIRST APPEAL FROM ORDER No. - 473 of 2015 Appellant :- The Oriental Insurance Co. Ltd. Respondent :- [ENTITY] And Ors. Counsel for Appellant :- [ENTITY] Counsel for Respondent :- [ENTITY], [ENTITY], [ENTITY] Hon'ble [ENTITY],J.
1. This first appeal from order has been filed under [SECTION] of the [ACT] (for short 'the Act') against the judgment dated 27.01.2015 and award dated 12.02.2015 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 3, Hardoi in [CASE NUMBER] ([ENTITY] and others v. [ENTITY] and others), whereby a sum of Rs. 3,28,500 has been awarded in favour of claimants along with interest at the rate of 6% per annum from the date of application till the time of its actual payment.
2. On 22.11.2013, at about 5 A.M., near Bavan trisection, a Swaraj tractor bearing no. UP 30J/0115, belonging to [ENTITY] and [ENTITY] and driven by [ENTITY], in a rash and negligent manner, came and dashed against the scooty, which was being driven by [ENTITY]. As a result of the accident, [ENTITY] died on the spot and his wife [ENTITY] and a 3 year old daughter were grievously injured. The post mortem of the deceased was conducted on 22.11.2013 in District Hospital, Hardoi and an FIR was lodged by [ENTITY] on 26.11.2013. The deceased, [ENTITY], was the son of Respondent no. 1, husband of Respondent no. 2 and father of Respondent nos. 3 to 6 herein.
3. Respondent nos. 1 to 6, the claimants, filed a claim petition under [SECTION] of the Act claiming compensation of Rs. 20,15,000/- along with interest. The claimants pleaded that the accident was caused due to the rash and negligent driving of the tractor and that at the time of the accident the deceased was 39 years of age and was working as a hawker and was earning Rs. 15,000/- per month.
4. In their written statement, the owners and driver of the vehicle (respondent nos. 7 to 9 herein) denied the alleged accident. It was stated that [ENTITY], driver of the vehicle had a valid driving licence and that the vehicle was insured with the Oriental Insurance Co. Ltd., the appellant herein. The appellant also filed written statement denying the averments made by the claimants in their claim petition. Based upon the pleadings of the parties, the Tribunal framed five issues. In support of their case, the claimants examined [ENTITY] (respondent no. 1 herein) as PW 1 and Smt. [ENTITY] (respondent no. 2 herein) as PW 2. No one was examined on behalf of the respondent nos. 7 to 9 and the appellant. The parties filed documentary evidence in support of their cases. After analysing the oral and documentary evidence on record, the Tribunal by the impugned award concluded that the claimants were entitled to a compensation of Rs. 3,28,500/- along with interest at the rate of 6% per annum.
5. The appeal has been taken up for hearing in the revised list. No one appears on behalf of respondent nos. 7 to 9.
6. Heard Sri [ENTITY], learned counsel for the appellant and Sri [ENTITY], holding brief of Shri [ENTITY], learned counsel for respondent nos. 1 to 6.
7. The present appeal has been filed by the insurance company on a limited ground. Sri [ENTITY], has submitted that the tractor in question was insured under the [ACT] for agricultural use only. But, at the time of the accident, the tractor had a trolley attached to it, and was being used for transporting wheat bags. Sri [ENTITY] submits that such a usage of the tractor amounts to commercial usage which is a clear violation of the terms and conditions of the insurance policy. Thus, the counsel contends, that the insurance company is not liable to pay the compensation in the present matter. In support of the above submission, the counsel for the appellant has placed reliance on a judgment of the Apex Court, rendered in the case of [ENTITY] and Co. Ltd. v. State of Karnataka, (2005) 7 SCC 364. Strong emphasis has been laid on Paragraph 24 of the judgment, which is being extracted below:
"24. [SECTION] is a comprehensive definition of the words "motor vehicle". Although, a "trailer" is separately defined under [SECTION] to mean any vehicle drawn or intended to be drawn by a motor vehicle, it is still included into the definition of the words "motor vehicle" under [SECTION]. Similarly, the word "tractor" is defined in [SECTION] to mean a motor vehicle which is not itself constructed to carry any load. Therefore, the words "motor vehicle" have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. A combined reading of the aforestated definitions under [SECTION], reproduced hereinabove, shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself being a motor vehicle, the tractor-trailer would constitute a "goods carriage" under [SECTION] and consequently, a "transport vehicle" under [SECTION]. The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under [SECTION] as a "goods carriage" and consequently, it falls under the definition of "transport vehicle" under [SECTION] of the [ACT]."
8. Per contra, Shri [ENTITY], holding brief of Shri [ENTITY], learned counsel for respondent nos. 1 to 6 has supported the impugned order.
9. Having gone through the judgment in [ENTITY] (supra), the Court is of the opinion that the facts in the present matter are distinguishable, and [ENTITY] cannot be of assistance to the appellant. The appellant in the said case were transporters of heavy equipments using mechanised carriage depending upon the items to be transported. And for the purpose of transportation, they had used a drawing vehicle calling it a tractor' to push/pull the trailors loaded with overdimensional cargo and the dispute was with respect to the tax being levied under the [ACT].
10. The argument that the attachment of the trolley to the tractor puts it in a different category of vehicle has previously been argued before the Apex Court, and has been rejected. A three-Judge Bench of the Apex Court in [ENTITY] v. Oriental Insurance Company Ltd., (2017) 14 SCC 663 considered the judgment in [ENTITY] (supra) and held as under:
"In [ENTITY] & Co. Ltd. v. State of Karnataka and Ors. (2005) 7 SCC 364, this Court was concerned with the taxation under the [ACT] and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission Under [SECTION] of the [ACT] and absence thereof would render it liable to tax Under [SECTION]. This Court held that the tractor when attached with the trailer carrying goods, would become a transport vehicle for the purpose of taxation."
(emphasis supplied)
11. Thus, in light of the above quoted extracts from [ENTITY], which clearly distinguishes [ENTITY] (supra), from the facts of the present case in the absence of any issue regarding taxation of motor vehicle, the reliance on the said case does not help the appellant.
12. As far as the argument regarding the alleged use of the tractor for commercial purposes, the Tribunal below has arrived at a categorical finding that the tractor-trolley was being used in a manner which was permitted under the insurance policy. The Tribunal has specifically noted that the appellant failed to produce any evidence to establish that the tractor-trolley was being used for any purposes other than agriculture related activities. Reference may be made to the Apex Court judgment in [PRECEDENT], wherein it was held as under:
"6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor was any evidence led to prove the same. In our opinion, it was mandatory for Respondent 1 Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein.
* * *
8. In view of above, we are of the view that, in the facts and circumstances of the case, the High Court was not justified in transferring the burden of paying the amount of compensation from Respondent 1 Insurance Company to the appellants herein."
(emphasis supplied)
13. In the absence of any positive evidence on behalf of the insurance company, it cannot be held that the tractor-trolley was being used for non-agricultural purposes or against the terms of the insurance policy.
14. In view of the above discussion, the present appeal is dismissed. Parties to bear their own costs.
Order Date :- 15.11.2019 Anupam