FAO No.1802 of 2009 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1802 of 2009 (O&M) Date of Decision. 17.09.2010 Som Nath son of Sh. Dhanpat Rai, resident of village Khanpur, Tehsil Jagadhari, District Yamuna Nagar (owner of tractor Sonalika bearing registration No.HR-02H-8379). ......Appellant Versus Nawab Singh son of Sh. Bharat Singh and others ......Respondents Present: Mr. S.S. Dinarpur, Advocate for the appellant. None for respondent No.1. Mr. Inderjit Sharma, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. Delay of 415 days in filing the appeal is condoned. 2. The appeal is by the owner of the tractor, who has suffered a liability to satisfy the claim of the claimant ultimately by the fact that the insurer has been granted the right of recovery. 3. The fact of the accident involving the owner's vehicle is not in dispute. The tractor had been used for an agricultural purpose and the accident had admittedly taken place when the vehicle had been given on hire by the owner for the use in an agricultural land for another person. On 13.11.2005, the driver of the tractor was FAO No.1802 of 2009 (O&M) -2- sowing wheat with a drill machine attached to a tractor in the fields of one Bhagwan Singh when the claimant was reported to have been asked to check the seeds in the drill machine. While the driver was sowing the seeds and taking the vehicle in reverse direction, the claimant came under the wheels of the drill machine and his big toe and one more toe got crushed and ultimately amputated. The Tribunal had determined a compensation of Rs.75,000/- as payable. There is no appeal by the claimant for any enhancement. 4. The policy that had been filed in the Court showed as Misc. and Special Type of Vehicle for Policy A liability only. The limit of liability as referred to, supposes that it was to cover the risk for any one accident by the use of a motor vehicle. The persons or class of persons, who were entitled to drive are any person including the insured provided the person driving holds an effective driving licence at the time of accident. The Tribunal held that the vehicle had been used for hire, which was against the terms of the policy and consequently the insurer will not be liable. The Tribunal assumed that since it was not specifically stated that it could be used for hire, it should only mean that such user of the vehicle would constitute a violation of terms of policy and consequently the insurer would be excluded from liability. 5. In my view, the whole approach of the Tribunal was erroneous. An exclusion of liability for an insurer shall not be presumed and it has to be specifically provided for. The defences available to the insurer under Section 149 are defences, which pertain to specific exclusions available through the policy of FAO No.1802 of 2009 (O&M) -3- insurance itself. The insurance policy covers the liability to a third party. That the claimant was a third party is not in dispute. If a Tribunal, therefore, finds that the claimant is a third party, who would be entitled to an insurance cover, the next issue shall be to ascertain whether there is any exclusion in terms of the policy that can avail to the insurer to contend that the claimant is not entitled to enforce the award against the insurer or that the owner is not entitled to any indemnity. The entitlement of a third party to make a claim against the insurer is too well established and that is why the Tribunal has also correctly held the insurer liable for the third party. While addressing the issue whether there is scope for indemnity or not, it should look into the terms of the policy and find whether the particular use, which the owner was putting it to, was prohibited by the terms of the policy. I have already referred to the portion that the vehicle could be driven by any person, who had a valid driving licence. The limitations of use are specifically brought out in the terms of the policy. The limitations are: “The policy covers use only under a permit within the meaning of sub-section 3 of Section 66 of the Motor Vehicles Act 1988. The policy does not cover use of (a) Organised Racing (b) Pace Making (c) Reliability Trails (d) Speed Testing” 6. In the limitations for use, there is no condition that excludes the use of the vehicle for hire or reward. It may be FAO No.1802 of 2009 (O&M) -4- noticed under Section 149 (2)(a)(i)(a) that the condition for excluding the use for hire or reward must be specifically made in the policy itself in order that the insurer could plead such a casae. It would be wrong to assume that a liability policy will at all times exclude the use of the vehicle for hire. It all depends on the nature of vehicle and this was a policy for a Misc. and Special Type of Vehicle used for agricultural operations. In the enumerated limitation of use in the policy, amongst the (a) to (d) purposes, the use of the agricultural implements attached to a tractor is not expressly excluded. The insurer is, therefore, clearly liable. 7. The Tribunal was, therefore, in error in directing a right of recovery for the insurer against the insured. The award is, therefore, set aside and it is found that the insurer is fully liable. The appeal by the owner is allowed. (K. KANNAN) JUDGE September 17, 2010 Pankaj*