HON’BLE SRI JUSTICE B.N.RAO NALLA M.A.C.M.A.No. 584 of 2005 DATED: 04.02.2010 Between: The National Insurance Co. Limited …………..Appellant Vs. 1. Chalamala Ranga Rao 2. Chalamala Ratnalamma 3. Chalamala Srinivasa Rao …………….Respondents JUDGMENT: Being aggrieved by the order dated 02.09.2004 passed in O.P.No. 118 of 2000 by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Eluru, allowing the petition by grating compensation of Rs.1,42,400/- to the claimants together with interest at 9% p.a. against their claim of Rs.1,50,000/-, the National Insurance Company Limited has preferred this appeal. The facts of the case in brief are that the claimants are the parents of the deceased - Ch.Narasimharao. On 22.4.1999, while the deceased was travelling in a Tractor bearing No. AP37 T 745 and Trailor No. AP37 T 1887 as labourer for loading and unloading jammu, having been engaged by one K. James, 1st respondent-owner-cum-driver of the Tractor and Trailor, drove them in a rash and negligent manner, as a result, the vehicle turned turtle, and Ch.Narasimharao died on the spot. Hence, the claimants filed O.P. No.118 of 2000 and they were awarded compensation of Rs.1,42,400/-. Challenging the same, the Insurance Company has preferred this appeal. Before the Tribunal, the 1st respondent in the O.P., who is the owner of the Tractor and Tailor remained ex parte. The 2nd respondent-insurance company filed counter stating that the deceased is an unauthorized passenger travelling on the Tractor-Trailor in contravention of the terms and conditions of the policy and permit, as such, the 2nd respondent is not liable to indemnify the 1st respondent-owner of the Tractor-Trailor. It is further contended that at the time of the accident, the deceased was travelling by the Tractor as pillion rider in violation of the provisions of the Motor Vehicles Act, as such, the 2nd respondent is not liable to pay any compensation. It is further contended that except the driver of the Tractor, no other person is covered under the policy, therefore, the risk of the deceased is not covered under the policy. Further, as the deceased is none other than the brother of the owner of the Tractor, there is no relationship of master and servant between them, and on this ground also, the 2nd respondent is not liable to pay compensation. Taking into consideration the evidence as well as the other material on record, the Tribunal gave a finding that the accident had occurred due to rash and negligent driving on the part of the driver-cum-owner of the Tractor and as Ex.B1 policy was in force by then, it fixed joint and several liability on the respondents by awarding an amount of Rs.1,42,400/-. The learned Standing Counsel for the appellant-Insurance Company has contended that the driver- cum-owner of the Tractor & Trailor, who is the 1st respondent in O.P., is none other than the brother of the deceased and second son of PW1. The learned counsel took exception to the fact that the avocation of the deceased is shown as “Nil” at column No.5 in the claim petition. Therefore, it is contended that the deceased cannot be said to be a labourer working on the Tractor & Trailor. He further submits that PW1 - father of the deceased, has admitted in his cross-examination that the deceased-son was sitting on the Tractor at the time of the accident and that the driver of the Tractor was none other than his second son, as such, he contends that the Insurance company is not liable to pay any compensation. He relied on a decision reported in United India Insurance Company Limited Vs. Serjerao and Others[1], wherein it is held that so far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by the Supreme Court in Oriental Insurance Company Ltd. V. Brij Mohan and Ors. (2007(7) SCALA 753) and it was held that the Insurance Company has no liability. The driver of a Tractor is prohibited from allowing any person to be carried in the Tractor. In another decision reported in New India Assurance Company Limited Vs. Lodya Shankar and Another[2] it was held to the effect that no passengers are permitted to travel by sitting on the Tractor & Trailor. He further submits that as per the pleadings in the claim petition, the deceased was engaged by one K. James, who is not a party to the claim petition, as such, the deceased cannot be said to have been working as a labourer under his own brother-the 1st respondent as no brother can engage his own brother to work as a labourer under him. On the contrary, the learned counsel for the claimants, who are respondent Nos.1 and 2 herein contends that as per the petition averments and the evidence of PW1, the deceased was an agricultural cooli. He also contends that there is no material on record to come to the conclusion as to the place where he was sitting in the Tractor-Trailor at the time of the accident, and no doubt, the deceased was working as a labourer. The learned counsel pointed out that from the evidence of RW1, who is none other than the Senior Assistant in R.T.O. Office, the accident vehicle had a permit whereby it can carry goods in the Trailor and also six persons engaged to work as coolies, and Ex.X2 – copy of Permit marked as Court document is to the same effect. Heard the learned Standing Counsel for the Insurance Company on behalf of the appellant and the learned counsel for the respondents-claimants and perused the material placed on record. From the contentions put forth by the learned counsel for both the parties, it appears that the deceased was working as a labourer for loading and unloading the accident caused Tractor-Trailor. When the deceased was working as a labourer for loading and unloading the Tractor and Trailor, his relation with the driver-cum-owner of the Tractor is immaterial. More so, inasmuch as six labourers are permitted to travel by the Tractor as per Ex.X2 - Permit and Ex.B1 – insurance policy was in force at the time of the accident, the Insurance company and the owner-cum-driver of the Tractor-Trailor cannot be absolved of their joint and several liability from paying the compensation. Even otherwise, in view of the fact that the Tribunal has already fixed several and joint liability on them, the Insurance company is liable to pay the compensation and if it has any grievance, it may recover the same from the owner of the accident caused vehicle as per the decision rendered by the Apex Court in Baljit Kauri case. For the foregoing reasons, the appeal is devoid of merits and the same is accordingly dismissed. No order as to costs. ________________ B.N.RAO NALLA,J 04.02.2011 bcj [1] 2007 AIR SCW 7280 [2] 2004(3) ALD 400