IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 385 of 2006 The Oriental Insurance Co. Ltd. …Appellant Versus Smt. Janki Devi & another …Respondents Sri Pankaj Purohit, Advocate for appellant Sri M.K. Goyal, Advocate on behalf of Sri M.K. Agarwal, Advocate for respondent no. 1. Sri Lalit Sharma, Advocate for respondent no. 2 Dated: November 20, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 01.04.2006 passed by Motor Accident Claims Tribunal/District Judge, Nainital, in M.A.C.C. No. 13/2005, Smt. Janki Devi versus Bachchi Singh and another. Brief facts of the case, according to the claimant, are that on 10.4.2004 when claimant- Smt. Janki Devi was working in the field of Shri Ganesh Negi, at about 10.00 a.m. driver of Tractor No. U.A.04A-2518 came there by driving the tractor rashly and negligently and hit the claimant, due to which, she sustained injuries. The claimant also alleged that after the accident she was admitted in Soban Singh Jeena Hospital and on 9.5.2004 she was discharged from hospital and her treatment remained continued at home. On 27.6.2004 the claimant was again taken to Soban Singh Jeena Hospital, from where she was referred to Bodla 2 Hospital, Agra and a sum of Rs.50,000/- has been spent on the treatment of claimant. The doctor has prescribed the medical expenses of skin drafting to the tune of Rs.1,50,000/-, to which claimant was not able to bear. Opposite party no. 1 filed his written statement and pleaded that accident did not take place due to rash and negligence of his vehicle. He also pleaded that his Tractor was insured with Oriental Insurance Co. Ltd., which was valid w.e.f. 30.4.2003 to 29.4.2004 and on the date of accident on account of valid insurance of tractor with insurance company, insurance company was liable to pay the compensation. The answering opposite party was not liable to pay the compensation. Opposite party no. 2-insurance company filed its written statement denying the contents of the claim petition and pleaded that at the time of accident Tractor No. U.A.04A-2518 was not being plied on road, rather Tractor was connected with Thrasher and when the Thrasher was working, at that time claimant sustained injuries due to her own negligence. Opposite party no. 1 did not submit the paper of insurance of Thrasher and claimant was not entitled to get compensation as per the conditions of insurance policy. The Tribunal on the basis of pleadings adduced by the parties framed following issues in the claim petition: 1. Whether on 10.4.2004, in the field of Ganesh Negi, at Rampur Road, 3 Haldwani, Smt. Janki Devi sustained injuries due to hit by Tractor No. U.A.04A/2518 being driven by its driver rashly and negligently? 2. Whether at the time of accident registered owner did not comply with the conditions of insurance and whether due to this reason insurance company is entitled to pay the amount of compensation? 3. To what amount of compensation is the claimant entitled and against whom? Parties led evidence in support of their cases. The Tribunal after having considered the entire material available on record and hearing learned counsel for the parties, decreed the claim petition for a sum of Rs.88,048/- against opposite party no. 2-Oriental Insurance Co. Ltd., vide judgment and award dated 1.4.2006. The Tribunal further directed insurance company to deposit the said amount of compensation within a period of one month. The Tribunal also observed that claimant is also entitled to get interest at the rate of 6% per annum, on the awarded amount of compensation, from the date of filing the petition till the final payment. Feeling aggrieved by the aforesaid judgment and award, the appellant-insurance company has preferred the present appeal before this Court. Heard Sri Pankaj Purohit, learned counsel for appellant, Sri M.K. Goyal, Advocate on behalf of Sri M.K. Agarwal, Advocate for respondent no. 1, Sri 4 Lalit Sharma, learned counsel for respondent no. 2 and perused the record. Learned counsel for the appellant has argued that since the thrasher was not a motor vehicle, the accident cannot be covered within the provisions of Motor Vehicles Act and tractor was on, though stationery, for operating the thrasher. He has thus submitted that since the accident in which the claimant sustained injuries was caused by thrasher and as such no liability can be fastened against insurance company only for the reason that tractor was insured with it. He has further submitted learned Tribunal wrongly awarded a sum of Rs.50,000/- for future treatment without there being any evidence. As far as issue no. 1 with regard to factum of accident is concerned, the claimant-Smt. Janki Devi has been produced herself as PW-1 and stated that on the date of accident, at 10.00 a.m. while she was working in the field of Ganesh Negi, driver of Tractor No. U.A.04A/2518 came there by driving the said tractor rashly and negligently and hit the claimant, due to which, she sustained injuries on her head as well as on her person. The tractor was being plied by Pooran Singh. She did not know whether any case was registered against Pooran Singh Negi or not. She had lodged the report of the accident after five and half months. When this witness was adducing her evidence, heirs of her head, skin and flesh were found uprooted and she was feeling a great difficulty in recording her statement. 5 Opposite party has produced Sri D.K. Agrawal, Branch Manager, Oriental Insurance Co. Ltd., Kashipur, Udham Singh Nagar as DW-1, who stated in his deposition that tractor in question was insured with it at the time of accident. The owner of tractor did not get the trailer insured and it is essential to have insured the trailer for his own damages as well as for of third party. This witness further stated that all the agricultural elements come within the definition of trailer. Therefore, the insurance company was not liable to pay compensation under the insurance policy for the reason that accident occurred due to Thrasher connected with Tractor. DW-2 Sri B.S. Rautela, Investigator stated in his deposition that he investigated the accident and found that on the date of accident Tractor was connected with Thrasher machine. While engine of Tractor was working, then the claimant, who was collecting the grains, came into contact of Thrasher machine and sustained injuries. In the additional evidence, the claimant stated that at the time of accident she was sweeping in the field and collecting the grains, he did not remember whether any machine was attached with the Tractor or not. The Tribunal after having considered the entire evidence adduced before it, has come to the conclusion that at the time of accident engine of tractor was on and thrasher was also operating and due to this fact that thrasher machine was attached with tractor, it cannot be said that the said accident did not come within the definition of ‘accident’ under the provisions of Motor Vehicles Act. The 6 Tribunal recorded a finding that accident had taken place due to rash and negligent driving of driver of Tractor without seeing the claimant who was working with Thrasher attached with Tractor. I do not find any illegality in the said finding recorded by the Tribunal and same deserves to be confirmed. As far as issue no. 2 is concerned, the Tribunal held that the burden to prove this issue was on opposite party, but the opposite party did not adduce any evidence in this regard that as to how registered owner of tractor did not comply with the conditions of insurance policy. The Tribunal in absence of any evidence in this regard decided the said issue in negative. I do not find any illegally in the said finding recorded by the Tribunal and same deserves to be confirmed. As far as amount of compensation to be awarded in favour of claimant is concerned, the Tribunal has adopted absolutely right method for calculating the same and the same does not require any interference. As regards liability to pay the compensation, the Tribunal held that since Tractor in question was insured with opposite party no. 2- Oriental Insurance Co. Ltd. and at the time of accident insurance of vehicle was valid, therefore, liability to pay the compensation is of opposite party no. 2-insruance company. I do not find any infirmity in the said finding recorded by the Tribunal and the same deserves to be confirmed. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. 7 Accordingly, appeal is dismissed. The impugned judgment and award dated 1.4.2006 passed by Tribunal, is hereby confirmed. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP