IN THE HON»BI^mGHc6uRTOFCH^TTISGfcARH^^^^^ <lrP^ Misc. Aooeal tC} No. ^ T'^/2010 APPELLANT Bajaj Allianz General Insurance Company Limited, Through Branch Manager, Shiv Mohan Bhavan, Vidhan Sabha Marg, Pandri, Raipur Tahsil 85 Distt. Raipur (C.G.) (Insurance Company) Versus RESPONDBNTS \v-: ^l...-••e^^ ^y ^.^ ^eT~,.^llkk ^^l>tlt''^ 1 Jaggu Kansari Age-45 years, S/o Fatte Sao Kansari, R/o Kaserpara, Navapara, Thana - Gobra Navapara, Tahsil Abhanpur, District Raipur (C.G.)(Claimant) 2 Neelmani Sahu S/o Jeevanlal Sahu, aged about 25 years, R/o Village - Pbd (Panduka) Presently at Village Piprod, Thana - Gobra Navapara, Tahsil Abhanpur, District Raipur (C.G.)(Driver ofTractor No. C.G 04- DA/6839) 3 Shatrughan Sahu, s/o Sukluram Sahu R/o Village Kurra, Thana- Gobra Navapara, Tahsil Abhanpur, District Raipur (C.G.) (Owner of Tractor No. C.G 04-DA/6839) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 HIGH COURT OP CHHATTISGARH. BILASNJR DB: HON*BLB I. M. QUDDUSI fib KGN*BLE 0. MINHAJUDDIK, JJ APPBLLANT: RBSPONDBNTS: M.AfCl No. 772/aOlO Bajaj AUiaiiz General Insuraace Coxsipaiiy Vs. Jaggu Kaasad & others MISC. APPEAL UNDBR SECTION 173 OP THE MOTOR VBHICLES ACT. 1988 Appearaace: Mr. Sachm Siagh Rajput, counsel for fhe appellaat. Mr. N.K. Vyas, counselforrespondentno.l, Per I.M. OUDDUSI. J. ORAL ORDBR (29.09.2011) 1. This appeal has been filed by fhe Insurance Compaay agaiast fhe impugned award dated 13,05.2010 passed by the Addl. Motor Accident Clauns Tribunal^ Gariyabaad, Distt. Raipur (C.G) in Claini Case No. 52/2009 so far as it rclates fastemug of UabiMty upon fhe appeUaat to pay compensatfon it also quaatumL. 2< The Insurance Compaay was given pennission uiider section 170 ofthe Motor Vehicles Act. 3, Brief facts of fhe case arc fhat fhe claimaiit/iajiired Jaggu Kaasari has filed claim petition u/s 166 of the Motor Vehicles Act, 1988 for fhe awaxd of a total coxnpensation of Rs.11,08,800/- on vanous heads alleging fhat on 01.01.2009 he was goiag to Nawapara froin Rajim by cycle, On fhe way near Pafhkar Naka^ respondent no.2, who drivmg fhe Tractor bearmg Regn,No.C,G.04/DA/6839, ia rash aad negl^ent xnaaner dashed tiie cycle, due to which, the clamiaat sustaiaed serious iojirries on his right leg aad ofher parts offhe body. He was brought to Nawapara Hospital froin where he was shifted to Agrasen Hospital, Samta Colony, Raipur where he had iindei^one treatment from 01.01,2009 to 15.01.2009. During the course of treatoaaent, his right leg below the knee was ainputated, as a rcsult of which, he becanie permaaenfly disabled aad fhe Medical Boaid has given certificate ftiat fhe permanent disability of fhe claimaat iryiired is to the extent of 70%. Respondent no.2 was fhe owner of the offending Tractor TroUey which was iasured by fhe appeUacLt, Learaed Claims Tribunal held that the Tractor Trolley No.C.G,04/DA-6839 which was driven by respoiident no,2 ia a rash aad negUgent mminer hit the cycle af claimaiit/mjured (respondent no. 1 hereia), as a result ofwhich, respondent no, 1 became penxianently disabled, fherefore, fhe clauaiaat is entitled to get a total conipensation of Rs.3,96,900/- aad fhe iasuraace compaay is primarily responsible to pay fhe said coiuipensation to fhe clamiaat We have heard learaed counsel for fhe parties aad have also gone through fhe records of fhe Tribunal. Lcamed Counsel for fhe appellaat has raised fhree contentions. The j5rst one is fhat fhe driver of fhe Tractor was not havmg valid aad effective driving Ucence, The next pomt is that the Tractor aad TroUey was being used for ofher fhaii agricultural purposes aad the insuraiice of fhe Tractor TroUey was for agricultural purpose only as it was a famiers^ poMcy. 1 ':^^31 j ''A. , :if ^ \^y ""^••^l^'^' The third poiat is wifh regard to quantum aad penal iaterest imposed @ 9,5% per annuni ia case the aaiount under ffae award is paid after stipulated period, 7, Wifh regard to the first poiat fhat the driver was not haviag vaUd and effective driviag licence, fhe Claims Tribuiial has dealtwith this pomt UbeiaUy. In fhis regard, clause (b) & (c) of Rule 2 of the Central Motor Vehicles Rules, 1989 which contains the definition of "agricultural tractox^ aad "agdcultural trailer9 are relevant herc and quoted below: 2(b) "agricultural tractoi^ nieaas aay DiechanicaUy propelled 4 wheel vehicle designed to work with suitable iinpleiaents for various field operations aad/or trailers to transport agricultural materials. Agricultural tractor is a non-transport vehicle; 2(c) "agricultiiral trailei^ meaas a trailer generaUy left uiicovered wifh siagle/double axle construction which is coupled to an Agricultural Tractor by mieaas of two hooks aad predoimiiantiy used for traasportmg agricxiltural niaterials; A bare reading ofthe above provisions would show fhat, iffhe Tractor was beiag used for the purpose of ofher fhan agriculture, it caanot be termed as 'agricultural tractor' or 'agricultural trailer^ aad fherefore ia fhat situation, fhe Tractor along-wifh fhe TraUer wozild have been treated as a transport vehicle, Therefore, this contention depends upon fhe next coutentiou that whefher fhe Tractor was beiag used for non- agricultural purposes. We have perused the L.C-R aad especially tfae statements offhe witnesses, There is no suggestion to any offhe claimaat ..^''-' "^ ^'- v^^ ~t^'r'/' 8. witoaesses that fhe Tractor was beiag used for noii-agricultuFal purposes. Merely loading of stones m the trailer would not amount to draw aa mfercnce fhat fhe Tractor was being used for non-agricultural purposes as fhe stones could be used for constniction of bouiidary watl of fhe s^ricultural field or construction of puiap house. Therefore, uiiless ia the cross examination of fhe witaesses, the question would have been put regardiag the use of the Tractor for non-agricultural purpose, adverse inference cannot be drawn. Further fhe iasuraace conipaay^s witnesses namely Ashutosh SiQgh (N.A,W,3) has adndtted ia his cross exaaimation that the iavestigator has not been produced who had iiivestigated fhe fact regardiag the purpose for which ffae Tractor was beiag used aad fherefore, in absence of fhe same, it caruiot be said fhat fhe Tractor aad Trailer attached with the Tractor were being used for nou-agricultural purpose, In view of fhe above, we affirm fhe findiags of fhe claims Tribunal fhat ia absence of any proof on fhe side of fhe iasuraace coxnpaay, it canxiot be said fhat fhe Tractor was not beiag used for agricultijiral purposes and thercfore, fhe driver of fhe Tractor was havmg vaMd aad eflTective driving Hcnece which was meant for non- traasport purpose fhat is LMV. Wifh regard to question of quaatum, we have perused fhe iinpugned award. Accorduig to the niedical board opiDion, fhe permaaent disabiUty was to tiie extent of 70% but the Tribunal has considered fhe disabiUty wifla reference to fhe loss of eamiag capacity to the extent of 50% only aad therefore, the compensation awarded is adequate. —^Ms^S -___^^, ff '.^-.s.m^, g 'm^y% s...."' "^'" '^^.]-:^-;;-" 9. The Tribunal has graated a simple interest @ 7.5%per aanum ia case fhe amoiint under award is paid withia two xnonfhs. However, it has imposed penal iaterest @ 9.5% per aanuia in case fhe amount is not paid wifhin fhe stipulated period, but to our opiaion, fhe penal interest is impraper aiid agaiast fhe spirit of fhe Motor Vehicles Act ^s fhe mterest at the prcvaiting market rate was Uable to be imposed aiid ioitiaUy fhat has been imposed @ 7.5%, Therefore, fhe Penal Iiiterest @ 9,5% per aruiiiiii imposed by the Tribunal caanot be allowed to sustaui aad the same is set aside, In view of fhe above discussion, we atlow this appeal in part aad niodify Clause (2) of Para 28 of fhe iinpiigiied aw^"d dated 13.05.2010 settiag aside fhe penal iaterest Tbe appeUaiit shaU pay only simple iiiterest @ 7.5% per annirm fhrough-out frosi the date of filiag of the claim petition i.e., 19.06.2009 tiU ite payinent is niade. Rest of fhe conditions of fhe iaipugned award shaU remaui mtact. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G.Minhaiuddin Judge Rao