HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH: HON’BLE SHRI R. L. JHANWAR,_J. Misc. Appeal No. 631/2002 APPELLANT New India Insurance Company Limited. I ‘ ‘ § k - Versus . ki a RESPONDENTS Man Bi and others. Sd/— R.L. Jhanwar Judge 12 /201 ORDER POST ON 3 December, 2010 1? 9 / q‘ HIGH CRT OU OF CHHATTISGARH AT BILASPUR SB Hon ble Shrl Justice R L Jhanwar M. A. No.631 I 2002 New India Insurance Company Limited, Transpott Nagar, Korba through Branch Office - Bilaspur (C.G.) Versus 1. Manki Bai, Wd/o Late ltwari Kevat, Age about 21 years. RESPONDENT 2. Nira Bai, D/o Late twari Kevtg, Aged Claimant No.2 about 3 years. RESPONDENT 3. Mandakini, D/o Late itwari Kevat, Aged Claimant No.3 . about 4 months, Respondents No.2 & 3 are minors through their natural guardian Mother Manki Bai Wd/ Late ltwari Kevat. 4. Kalhi Bai, Wd/o Late Sobharam Kevat, Aged about 60 years, All No.1 to 4 are R/o Dungerpara, P.S. Baradwar Tehsil Sakti District —- Janjgir Champa (C G) 5. Punl Ram S/o Soaram Kevat Age about 25 years R/o Dungerpara PS Baradwar, Tehsil-Sakti, Distt. Janjgir Champa(C.G.) —Driver- RESPONDENT 6. Mahadev, S/o Aghiri Sahu, Aged about Defendant No.2 55 years, R/o Birgahni Tehsil — Janjgir, District Janjgir Champa (C.G.) —Owner- ppearance l I i l APPELLANT Defendant No.3 i i i i i RESPONDENT Claimant i No.1 Shri Shallendra Sharma counsel for the appellant None for respondents No 1 to 5 Shri Govind'Dewangan, counsel for respondent No.. 6 i l RESPONDENT Claimant No.4 bh d APPEALUNDER SECTION 173 OF THE MOTOR VEHICLES ACT A RESPONDEN Defendant No.1- ORDER (Passed on a .12.2010) t This is an appeal of Insurer against he impugned award dated 10 05 2002 passed by Additional Motor Accrdents Claims Tribunal Sakti Dist. Bilaspur in claim case No. 23/2001 whereby the Tribunal awarded Rs.1‘,12,000/- as compensation and directed the respondents before the Tribunal to pay the compensation jointly and severally. l l d T g. As against the compensation of Rs.16,15,000/— claimed by the ‘claimants by filing claim petition under Section 166 of the Motor vehicles Act for the death of ltwari in the motor accident occurred on @9.06.2001 due to rash and negligent driving of tractor bearing No.M.P. 58 M. 0191 and trolley M.P. 58 M 0184, the Tribunal awarded compensation of Rs.1,12,000/— as total compensation. Further the Tribunal directed the respondents — insurance company and owner to pay the compensation j‘ointly and severally. f Being aggrieved by the said impugned award, the insurer is before htsCourt in appeal 4 Shrl Shailendra Sharma learned counsel for the appellant vehemently argued that the tractor trolley was being used for commerCIal purpose and the Insurance Is only agricultural purpose. He also argued that sitting capacity of tractor is only for ‘one i.e. driver and that driver was holding only L.M.V. licence and not holding to drive commercial vehicle. bn these premises, he urged that the liability to pay compensation should be fastened on the owner and not on the insurance company. 5. , On the other hand, Shri Govind Dewangan, learned counsel for rEespondent No.6 argued in support of the impugned award. He further argued that the said tractor — trolley was insured with the appellant/Insurance company and tractor was being used by owner himself to bring wood for his house i 6 l have heard learned counsel for the‘ parties at length and have perused the impugned award and records of the Tribunal. 7. After perusal of record and evidence adduced by the parties, it is clear that A.W.1 Manki Bai is the wife of deceased — ltwari, who died in motor accident According to her evidence deceased was carrying wood from Pussore to Dongrapara from her maternal home She denied that the wood belonged to Mahadev owner of the tractor 8. N.A.W.1 Puniram has stated that he was the driver of that tractor and wood was being transported by the said tractor. According to him, in the tractor, 4 persons were sitting in which the deceased was also t traveHing. He has stated that the wood was being taken for Bajarang and BEajarang is not a relative of the ’owner - Mahadev. According to this wttness, Bajarang had paid- Rs.500/— to Mahadev to bring that wood. Witness of insurer N.A.W.2 Tushar Kanti Ghosh has stated that the driving lidence of Puniram was for private vehicle and the same is exhibited as E):(.D.1(C).' The tractor was insured only for agricultural purpose and not f cercial ppose and that o the date of accident, wood wa being trnsported by the said tractor, therere, the trtor trolley n t ate of iidnt hs become ”goods vehicle" a for that the iurance company is riot responsible. .A.Wf3 itin upported the evidence of N.A.W.2 Tsr Kanti Ghosh and stated tt the tie of accident wood was bn transpted from ussore to Dongaara. . ; i v a fr e n y hev; that on the te of incident wod was eing transportd from Pssr to Dongarara for sm Bajarang jaran had aid .0/- to Mahev, owner of te tract. Te evience of A.W.1 ni s suprte by e evidenc of N.A.W.2 Tushar Kanti Ghsh and N.W.3 itin. Threfore, it is clear that the said tractor was not being ued f aicultural puose whereas the id trator was insured for aricltural purpose. Thus, there is clear violation licy of insurance, lt is lso clear fm the evidence of Puiram N.A.W.1 that on the date of iidt 4 rsons were trelling in he olley in which deceased was oe of he persons and owner has not stated that th were his labourers, therefore, it is clear that they were gratuitous passengers and no passenger can travel in tractor trolley. Therefore, it is also the violation of I dr omm ur n s a fo ac o he d nce a nd ns l uha ha at m eig or P rp 9. Havng thus considered the aboe evidence, it is cler om the evidnce of Puiram N. A.W.1, who was the driver of tractor owned b Maad da o b e uoe p oe and Bag p Rs50 ad h or h d Puram i pod th e o -- IA N e s dr gr rp sa c gu of po a ro n ncen pe av t tr n t ey the insurance policy. l l 1t). So far as the driving licence is concerned, it is clear that driving licence of N.A.W.1 Puniram, the driver of tractor trolley is having only l L.lM.V. licence exhibited as EX.D.1(C ) and not for transport vehicle. A tractor as well as trolley attached to it is motor vehicle. lf the tractor is used for the carriage of goods then it will be “goods vehicle”. Therefore, it iséclear that at the time of incident wood was being transported for another person than the owner and driving licence was also not valid. r l : N N s l 11. ‘ For the foregoing disc‘ussion, it has come in the evidence that on the Ldate of incident, wood was being transponed for Bajarang but not for ownEer and trolley was also attached to tractor for the transportation of wooEd‘ therefore, the tractor trolley has become goods vehicle whereas driving licence of the tractor driver is‘only for L.M.V. which is not meant for tranisport vehicle. lt has also come in the evidence that the deceased was also‘ travelling in trolley as gratuitous passenger and not as labourer. ln surn and substance, the said tractortrolley was being used for commercial purbose and not for agricultural purpose. Therefore, insurance company is not liable to pay compensation to the claimants. Eu‘ l l 12 l While appreciating the evidence on record the learned Claims Tribunal has not constdered the above aspect indicated in precedent paragraph and thereby committed illegality 13 l lnthe result the appeal ofinsureris allowed The impugned award in so far as it relates to pay compensation by the appellant is set aSide andlinstead it is ordered that the compensation awarded by the Tribunal shall be paid by the owner of the tractor trolley lf any payment is made by the .insurance company, then the insurance company is at liberty to recdVer the same from the owner of the tractor trolley. No order as to costgs. R.L.Jhanwar l0\\v Judge i . Sd/— \“N ‘ i