^ % fl^i HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri DJiip Raosaheb Deshmukh. J. Miscellaneous Appeal fC.l No.1372 of 2007 Royal Sundaram Alliance Insurance Company Limited versus Eshwarand others ORDER Postfor 0^-07-2008 Sd/- Dilip Raosaheb Deshmukh Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Sinaie Bench : Hon'ble Shri Dilip Raosaheb Deshmukh. J. ^^ Miscelianeous Appeal (C.l No.1372 of 2007 Appeliant Royal Sundaram Alliance Insurance Company Limited, Through Branch Manager, Situated at Vanijjya Bhawan, Devendra Nagar Road, Pandri, Raipur (C.G.) Respondents versus 1. Eshwar, S/o Ummedi Yadav, aged about 40years, 2. Janki Bai, W/o Eshwar, aged about 38 years, Both R/o Village Lawatara, P.S. and Tahsil Berla, District Durg (C.G.) {CIaimants) 3. Bhageia Ram, S/o late Jhadu Ram, aged about 60 years, R/o Village Lawatara, P.S. and Tahsil Berla, District Durg (C.G.) fOwner) 4. Raghunath Urf Raghu, S/o Dhola Ram, aged about 32 years, R/o Viilage Lawatara, P.S. and Tahsil Berla, District Durg (C.G.) (Driver) 5. Diiip, S/o Govardhan Sahu, R/o VHIage Lawatara, P.S. and Tahsil Beria. District Durg (C.G.) (Another Driverl Appeal underSection 173 ofthe Motor Vehicles Act. 1988 Present: Shri Sachin Singh Rajput, counsel for the appeiiant. Shri P.P.Sahu, counsel for respondents No.1 and 2. Shri Avinash Chand Sahu, eounsel for respondents No.3 and 4. No one appears for respondent No.5. ORDER (Passed on this ^ day of July, 2008) -.. s Thjs is an appeal by the insurer. (2) The Additional Motor Accidents Claims Tribunal, Bemetara, District Durg (henceforth 'the tribunal') has in Claim Case No.58/06 passed an award dated 31-08-2007, whereby compensation of Rs.2,39,900/- was awarded in a case of death of one Lilesh Kumar Yadav, who was travelling on the engine of the ill-fated new unregistered tractor (henceforth tthe tractor') to which a trotley was attached. The tribunal held that since the tractor was insured for agricultural purpose oniyand was being used for such purpose, breach of the conditions of the policy of insurance was not proved. (3) The short question that arises for determination in this appeal is whether in a casewhere the deceased was traveliing on the engine of the tractor at the time of the accident and diedas a result of a fall therefrom, iiabiiity to pay compensation could be fastened on the insurance company? (4) Under Section2(44) of the Motor Vehicles Act, 1988 (henceforth 'the Acf) a tractor has been defined as under: "Sec, 2(441: "tractor" means a motorvehicle which is not itself constructed to carry any load (other than equipment used for the purpose of proputsion); but excludes a road-roller;" This definition clearly shows that besides the driver carrying of any passenger on atractor is prohibited underthe Act. (5) Regulation,28 of the Rules of the Road Regulations, 1989, formulated underthe MotorVehicles Act, 1988, is as under: ^ "28. Driving of tractors and goods vehicles.- A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shal! not carry passengers for hire or reward." (6) It is not in dispute that the insurer is not required statutorily underSection 147(1) ofthe Act to cover the risk of a person traveSling on the engine of the tractor besides the driver of the tractor. In United India Insurance Company Limited \fs. Smt Rambai ancf others, Miscellaneous Appeal No.789 of 2006, decided on 07-07- 2008, this Court has held that the deceased having travelled on the tractor could also not be termed as a third party so as to fasten statutory liability on the insurance company. By carrying the deceased on the engine of the tractor a fundamental breach of the policy of insurance is established and, therefore, liability for payment of compensation could not be fastened on the insurance company. In National Insurance Co. Ltd. vs. BramQranbike and others, 2006 ACJ 671, the High Court of Karnataka has in similar situation held that the liability cannot be fastened on the insurance company in such a case. In New India Assurance Co. Ltd. vs. Diwakar ancf others, 2006 (2) TAC 937 (Bom.), the High Court of Bombay has also held that in a case of death of a chiid aged 11 years traveliing on the mudguard of the tractor the insurer not being statutoriiy required to insure passengets in a goods vehicie was not liable to pay compensation. In New India AssuranceCo. Ltd. vs. Vedwati and .y^-^ ^ 1'O^ 'v.\ ''^.^r-^' .^ ><;x. ^r'" ^v>1' others, Appeal (Civil) No.860/2007 (arising out of SLP(C) No.8317/2002) with Civil AppealNo.861/2007 (arising out of SLP(C) No.8802/2002), decided by the Supreme Court of India on 20-02- 2007, it was held that carrying of passengers on a tractor is not contemplated by the Act. In other words, the legislative intent seems to be to prohibit carrying of any passenger on the tractor. The inevitable conclusion therefore, is that since the provisions of the Act do not enjoin any statutory liability on the owner of the vehicle to get the tractor insured for any passenger travelling on the engine of the tractor, the insurer would not be liable to indemnify the owner. In the present case, in view ofthe testimony of Anjl Kumar Sahu, applicants' witness No.2, who was also travelling on the tractor with the deceased, it is established beyond doubt that at the time of the accident the deceased Lilesh Kumar Yadav was carelessly sitting on the engine of the tractor and died as a result of fall therefrom. Liability to pay compensation, therefore, squarely rests with respondent No.S/owner of the tractor. (7) Inthe result, the appea! is allowed. The impygned award dated 31-08-2007 passed by the tribunat is partiy modified by exonerating the appellant/insurer from the liability to pay compensation. The appellant/insurer may snitiate proceedings for recovery of compensation, if any paid by it, from the owner. Sd/- Dilip Raosaheb Deshmukh Judge Gopai