IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 37 of 2002 Date of Decision : September 16, 2009 United India Insurance Company Ltd. Appellant Versus Smt. Zalmo Devi and another Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Ms. Madhu Sharma, Advocate, vice Mr. Ashwani K. Sharma, Advocate, for the appellant. For the respondents : Mr. Sanjeev Bhushan, Advocate, for respondent No. 1. Sanjay Karol, J. (Oral) The insurer M/s United India Insurance Company Limited, has assailed the impugned award dated 6.10.2001 passed by Motor Accident Claims Tribunal, Kullu, H.P., in Claim Petition No. 107/1999, titled as Smt. Zalmo Devi versus Bir Chand Thakur and another. The challenge is on the ground that while deciding issue No. 3 the Tribunal ignored the fact that the deceased was in effect travelling as a gratuitous passenger in the vehicle in question and wrongly fastened the liability upon the insurer. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 The claimant and the owner of the vehicle have accepted the award as they have neither filed any appeal nor any cross objection. Hence facts necessary for adjudication of the petition are briefly stated as under. Claimant Smt. Zalmo Devi filed a petition under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act) claiming compensation on account of death of her son Sh. Mahender Singh who died in a motor accident on 17.8.1999. The petition was opposed by the insurer inter alia on the ground that the tractor bearing No. HP-34-1182 was being driven in contravention of the Act and hence the material terms and conditions of the insurance policy stood breached. The owner did not oppose the petition but claimed that compensation was liable to be paid by the insurer. Based on the pleadings of the parties the Tribunal framed the following issues: “1. Whether Mahender Singh died in the accident of tractor No. HP-34-1182, which was being driven rashly and negligently, if so its effect? OPP 2. If issue No. 1 proved in affirmative, to what amount of compensation, the petitioner is entitled and from whom? OPP 3. Whether the driver was not having valid driving licence at the time of the accident and the deceased was an unauthorised passenger? OPR-2 4. Relief.” 3 Opportunity to lead evidence was afforded to the parties. Appreciating the material on record the Tribunal came to the conclusion that from the statement of Sh. Saranjit Lal (PW-2) as also the copy of F.I.R Ext. PW 2/A it was evident that the deceased Mahender Singh suffered injury in an accident which took place on 17.8.1999 and died due to the same. Tractor No. HP-34-1182 met with the accident which took place due to the rash and negligent driving on the part of Sh. Raghubir Singh. The claimant as dependent was held entitled to a total compensation of Rs. 1,94,000/-. The Tribunal found that the driver Sh. Raghubir Singh was possessed with a valid and effective driving licence Ext. RA and on this count the material terms and conditions of the policy could not be held to have been breached. Further on the question as to whether the deceased Sh. Mahender Singh was travelling as a gratuitous passenger the Tribunal found that there was nothing on record to show that the tractor was being used in violation of the terms of the insurance policy. Further relying upon the decision of this Court in Smt. Krishni and others versus Sh. Amar Nath and others, 1997 (1) Sim. L. C. 37, the Tribunal held that if the deceased had been authorised and permitted by the driver to board the tractor the insurer was liable to pay the amount of compensation. The decision in Smt. Krishni (supra) is not applicable as subsequently the Apex Court in Oriental Insurance Co. Ltd. versus 4 Brij Mohan and others, (2007) 7 SCC 56 and United India Insurance Company Limited versus Serjerao and others, (2008) 7 SCC 425 has held that where a labourer travelling in trolley of a tractor sustains injuries due to an accident, the insurance company cannot be held to be liable for the reason that no person could not have been allowed to travel in a tractor meant for agricultural purposes. In the present case the certificate of registration of the vehicle in question evidently discloses that the tractor was meant for use of agricultural purposes only. The deceased was not driver of the said vehicle. Sh. Saranjit Lal (PW-2) no doubt has tried to explain that at the time of the accident the deceased was not travelling in the vehicle but was actually hit by the same while walking on the road, but however, his testimony does not inspire confidence as it is the petitioner’s own pleaded case that the deceased was travelling in the vehicle at the time of the accident and sustained injuries as a result thereof. This fact also stands corroborated by F.I.R. Ext. PW-2/A as relied upon by the claimant herself. Further Sh. Jagdish Chand (RW-2) Inspector/SHO, P.S. Pangi has clarified that he himself had carried out the investigation and found that at the time of the accident four persons were actually sitting on the tractor out of whom two had died. Hence under the circumstances, keeping in view the position of law as it stands today, the insurer cannot be said to have indemnified the insured as the vehicle was being used in 5 contravention of the terms and conditions of the insurance policy Ext. RB. The findings of the Tribunal to this extent are erroneous and are accordingly reversed. However keeping in view the facts and circumstances of the present case it is ordered that the insurer shall pay the amount to the claimant and recover the same from the owner being respondent No. 2 herein. For the aforesaid reasons the appeal is allowed and the impugned award is modified to the aforesaid extent. (Sanjay Karol), Judge. September 16, 2009 (PK)