1 S.B. Civil Misc. Appeal No.915/2007 National Insurance Co. Ltd. vs. Gautam & Ors. S.B. Civil Misc. Appeal No.915/2007 National Insurance Co. Ltd. vs. Gautam & Ors. Date : 19.12.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Jagdish Vyas, for the appellant. Mr.Mahendra Trivedi ) for the respondents. Mr.Rakesh Arora ) - - - - - Heard learned counsel for the parties. The only question involved in this appeal preferred by the appellant insurance company is whether, the deceased who was sitting in tractor trolley over the fodder as labour and died in turtling of the tractor, whether the insurance company can be held liable. According to learned counsel for the appellant, the Tribunal misinterpreted the facts and held the deceased travelling as labour was third party which is contrary to the decision of the Hon'ble Supreme Court delivered in the case of Oriental Insurance Co. Ltd. 2 S.B. Civil Misc. Appeal No.915/2007 National Insurance Co. Ltd. vs. Gautam & Ors. vs. Brij Mohan & Ors. reported in MACD 2007(1) (SC) 541. Learned counsel for the claimants and learned counsel for the owner of the vehicle tried to justified the award of the claimant against the insurance company with the help of the conditions mentioned in Part-II of the insurance policy which are applicable to the third party only. Admittedly, the labour, who was travelling in the tractor trolley sitting on fodder, cannot be treated as third party. Since the facts as admitted by the claimants' witnesses themselves that the deceased was travelling on the tractor trolley as labour and he cannot be considered as third party, therefore, Part-II of the policy has no application and hence, the appellant insurance company cannot be held liable. The judgment relied upon by learned counsel for the respondent owner of the vehicle delivered by the Division Bench of this Court in the case of New India Assurance Company Ltd. vs. Smt. Bhanwari Devi & Ors. reported in 2001 DNJ (Raj.) 209, cannot have any 3 S.B. Civil Misc. Appeal No.915/2007 National Insurance Co. Ltd. vs. Gautam & Ors. application in view of the judgment of the Hon'ble Apex Court, referred above. In view of the above, this appeal is allowed and it is held that the appellant insurance company is not liable to pay the award amount. The award amount, if has been paid to the claimants by the appellant, then the same shall be recoverable by the appellant from the owner of the vehicle. However, the claimants, if have not recovered the award amount, they shall be entitled to recover the award amount from the owner of the vehicle. (PRAKASH TATIA), J. S.Phophaliya