1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 3683 OF 2008 Bajaj Alianz General Insurance Co. Ltd., Appellant Versus Smt. Arunabai w/o Vinayak Bhil and others. Respondents Shri S.G. Chapalgaonkar , advocate for the appellant. Shri A.S. Savant , advocate h/f Shri M.S.Sonwane Adv. for Resp. 1 to 5 Shri S.P. Brahme advocate for respondent No.6. CORAM: R.K. DESHPANDE, J. DATE : 13TH AUGUST, 2009. P.C.: 1. Heard Shri Chapalgaonkar, the learned counsel for the appellant. This appeal challenges the order dated 11.07.2008 passed below exh.5 in claim petition no. 93/2007 by the Chairman, Motor Accident Claims Tribunal, Dhule whereby the appellant alongwith respondent No.6 owner of the vehicle is held jointly and severally liable to pay 'no fault liability' amount of Rs.50,000/- to the claimants within one month from the date of the order failing which an interest @ 7.5% is also made payable till the date of realization. 2. The respondents No.1 to 5 are the original claimants who have filed claim petition no.93/2007 before the M.A.C.T. Dhule. The case of the claimants-respondents No.1 to 5 was that on 25.10.2006 the deceased Vinayak Jatan Bhil was travelling in a tractor bearing chassis no. 4560609404. While travelling in the said tractor Vinayak Bhil fell down from the tractor and died on the spot. The respondents No. 1 to 5 2 therefore claimed compensation of Rs.2,50,000/-. The appellant- company was joined as respondent No.2 whereas the owner of the tractor was joined as respondent No.1 in the claim petition. 3. The stand of the appellant-insurance company before the Tribunal was that the tractor was insured in the 'Farmers Package Policy' and the claimants alleged that the deceased Vinayak was travelling as a labourer on the said tractor. The claim of the insurance company was that this fact by itself indicate that deceased was not a driver and as per the sanctioned capacity of the vehicle tractor only the driver is permitted. Thus the tractor was being driven in breach of the provisions of the Motor Vehicles Act when it carried. It is also alleged that the deceased was travelling as a labourer and the same was in breach of the farmers package policy. Therefore the insurance company was not liable to make the payment. 4. By the impugned order dated 11.07.2008, the Tribunal has held that the question whether the insured-deceased is said to be a person travelling on the vehicle as a gratuitous passenger or fare paying passenger is required to be gone into but it was a fact that deceased was travelling on a tractor as a labourer. Tribunal also recorded a finding that the question whether the risk of labourer is covered or not can also not be gone into at this stage and what is required to be seen is the involvement of the vehicle in the accident and whether primafacie there is breach of the conditions of the policy. The Tribunal therefore directed that in view of the provisions of Section 140 of the Motor Vehicles Act, the appellant and respondent No.6 the owner of the vehicle were jointly and severally pay 'no fault liability' amount of Rs.50,000/- to the petitioner. 5. I have heard learned counsel Shri S.G.Chapalgaonkar 3 appearing for the appellant, Shri S.P.Brahme appearing for respondent No.6 and Shri Savant appearing for respondents No.1 to 5 original claimants. 6. The question whether the labourer travelling in a tractor which is not accompanied by a trolley is covered by the 'farmers package policy' is a disputed question of fact which is required to be adjudicated by giving an opportunity to the parties concerned to lead evidence. The Tribunal has primafacie recorded a finding that deceased was a labourer and was travelling in a tractor. It has also held that it is too early at this stage to draw a conclusion that the death has taken place in a vehicular accident involving the tractor and that primafacie there is breach of a person travelling as a passenger. What the learned Chairman of the Tribunal meant to hold is that the questions are required to be gone into and at this stage, none of the questions regarding breach of the conditions of the policy can be gone into. 7. Mr. Chapalgaonkar the learned counsel for the appellant relies upon the judgment of the Apex Court reported in AIR 2008 SC 460 (1) United India Insurance Company Vs. Sarjerao in support of his contention that dealing with the question that whether labourer traveling in a tractor trolley is covered by the insurance policy. The Apex Court has held that the labourer is not covered and hence no fault liability cannot be imposed. The learned counsel also relied upon another judgment of the Apex Court reported in AIR 2007 S.C. 1971 (1) Oriental Insurance Co. Ltd., Vs/ Brij Mohan and others. It was a case where a labour slipped down from trolley attached to a tractor and it was held that there was no insurance covered in respect of the trolley. 4 8. I have gone through both the judgment cited by the learned counsel for the appellant. In my view, it would be premature at this stage to record any findings on the merits of the matter. The policy in question is not the Act policy but it is a farmers package policy and its applicability depends upon the terms and conditions incorporated in it. Therefore, the question whether the deceased was a labour employed by the owner and covered by the farmers package policy and also the question whether there is breach of conditions of the policy are required to be gone into after permitting the parties to lead evidence. The burden of proof as to breach of conditions of the policy, is obviously upon the insurance company. In view of this I do not find any substance in the instant appeal. The same is therefore dismissed. 9. The learned counsel for the appellant submits that an amount of Rs.25,000/- has been deposited in this Court on 09.09.2008 and same therefore, is required to be remitted to the Motor Accident Claims Tribunal, Dhule. Hence, the office is directed to remit the amount immediately to the Motor Accident Claims Tribunal Dhule which shall pass appropriate orders. ( R.K. DESHPANDE ) JUDGE ******* aaa/3683.09