:^ \ :\^.. HIGH COURT OF CHHATTISGARH AT BU-ASPUR Sinale Bench : Hon'ble Shri Dilip Raosaheb DeshmuklL_J, Miscellaneous Appeal (C.) No.140 of 2007 \..-. Divisional Manager, the Oriental Insurance Co. Ltd. versus Punitram Marar and others ORDER Pgstior 1^-02-2008 Sd/- DUip Raosaheb Deshmukh Judge r 1- HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'bje Shri DilJD Raosaheb Deshmukh, J, nfliscellaneous Appeal (C.) No.140 of 2007 Appellant Divisional Manager, the Oriental Insurance Co. Ltd., D.0.-2, Sai Nagar, Raipur, C.G. Respondents versus 1. Punitram Marar, age about 45 years, S/o Late Ferha Ram Marar, 2. Smt. Nira Marar, age about 40 years, W/o Punitram Marar, 3. Ku. Parvati Patel, age about14 years, D/o Punit Ram Marar, Respondents No.1 to 3 resident Mandir Hasaud, Djstt.- Raipur, C.G. 4. Ghanshyam Prasad Dhiwar, age about 35 years, S/o Vishnu Dhiwar, resident of Village Palaud, Thana - Mandir Hasaud, Distt. - Raipur (Driver) 5. Sutendra Singh, S/o H.B. Singh, Resident of Village Mandir Hasaud, Distt. - Raipur (Owner) Appeal under Section 173 of the Motor Vehicles Act Present: Shri Sudhir Agrawal, counsel for the appellant. Shri M.K.Bl'iaduri, counsel for respondent No.5. ORDER (Passed on ti^rKday of February, 2008) This appeal by the insurance company is against the award dated 31-10-2006 passed in Claim Case No. 14/2006 by the XIVth Additional Motor Accidents Claims Tribunal, Raipur (henceforth 'the MACT'), whereby liability was fastened on the insurance company to pay compensation of Rs.2,74,6007- in case of accidental death of a helper travelling in the tractor/trolley. (2) In this appeal, it is not disputed that Laxman Marar, aged about 20 years, died an accidental death on 20-11-2005. The tractor was driven by respondent No.4, Ghanshyam Prasad at the time of accident, who possessed a valid driving licence to drive a private light motor vehicle. On the date of accident, the tractor and trolley were insured by the appellant. The claimants, i.e., respondents No.1 to 3 are the father, mother and sister of the deceased respectively. (3) Respondents No.1 to 3/claimants pleaded in the application under Section 166 of the Motor Vehicles Act, 1 988 (henceforth 'the Act') that on 16-11-2005, the deceased Laxman Marar, a helper to respondent No.4/driver, had gone in the tractor trolley to the agriculture farm of respondent No.5/owner at Village Veergaon for laying stone dust on the road. After detaching the trolley filled with the stone dust for being emptied by the labourers, Laxman Marar was accompanying respondent No.4/driver on the tractor to the servicing centre for greasing of the tractor engine. Near Veergaon Canal, due to rash and negligent driving of the tractor by respondent No.4/driver, Laxman Marar fell and came underneath the wheel of the tractor and was seriously injured. He was hospitalised, and died on 20-11-2005. Compensation of Rs.7,31.000/- was claimed. (4) Respondent No.4/driver and respondent No.5/owner contested the application under Section 166 of the Act by filing written statement, wherein it was pleaded that at the time of accident, the trolley was attached to the tractor and the deceased Laxman Marar was seated in the trolley with other labourers and fell as a result of losing balance. Respondent No.4 possessed a valid driving licence. Since the tractor and the trolley were insured by the appellant on the date of accident, the insurance company was liable to pay compensation. (5) The appellant/non-applicant No.3 pleaded that respondent No.4/driver did not possess a valid and effective driving licence for driving a commercial vehicle on the date of accident. Liability to pay compensation could not be fastened on the appellant because risk of the deceased, who was travelling on the tractor, was not covered either statutorily or under the policy of insurance. (6) Respondents No.1 to 3/claimants examined Punitram, A.W.-1, the father of the deceased and eye-witness Banshilal, A.W.-2. The appellant examined one Rajesh Bhargav, N.A.W.-1, Licence Clerk of the R.T.O., Raipur to prove that respondent No.4/driver possessed a licence only to drive a private light motor vehicle. Surendra Kumar Agrawal, N.A.W.-2, Senior Assistant of the Oriental Insurance Company Limited, Raipur was also examined to prove that under the policy of insurance, Ex.D-2, the risk of any person other than the driver, who was travelling on the tractor was not covered. Respondent No.4/driver examined himself. (7) The MACT recorded a finding that respondent No.4 possessed a valid driving licence to drive the tractor. Laxman Marar died as a result of rash and negligent driving of the tractor by respondent No.4. It also recorded a finding that if respondent No.4/driver had allowed the deceased to sit on the engine of the tractor without the knowledge or ^ 1 W 8 consent of respondent No.5/owner, the owner of the tractor could not be at fault. In paragraph 30, it held that since the vehicle was insured and death had occurred as a result of rash and negligent act of the driver, the insurance company was primarily liable to pay compensation. Compensation of Rs.2,74.600/- was awarded by the MACT. (8) Shri Sudhir Agrawal, learned counsel for the appellant/insurance company has argued that even according to the application under Section 166 of the Act filed by respondents No.1 to 3/claimants, at the time of accident, the trolley was not attached to the tractor and the deceased was seated on the tractor itself. This was further substantiated by the F.1.R., Ex.P-2 and the seizure memo, Ex.P-5, whereunder after the accident only the tractor was seized and not the trolley. It was vehemently argued that in the certificate of registration of the tractor, the seating capacity including the driver of the tractor was only one and risk of any person being carried on the engine of the tractor was not covered under the policy of insurance, Ex.D-2. It was also urged that even in the insurance policy of the trolley seating capacity was shown as nil as it was to be used only for carriage of goods. Punitram, A.W.-1 had stated that the deceased was travelling on the tractor driven by respondent No.4 and had fallen due to the sudden application of brake at the speed-breaker. It was urged that in cross-examination, this witness was not confronted by the owner with the defence that the deceased was seated in the trolley, attached to the tractor at the time of accident. Banshilal, A.W.-2, eye-witness had also stated in the examination-in-chief that the deceased was seated on the tractor at the time of accident. It was also urged that the MACT erred in recording a finding that respondent No.4/driver possessed a valid driving licence to drive the tractor. On these premises, it was urged that the appellant/insurance company was not liable to pay compensation either statutorily under Section 147(1) of the Act or under the terms of the contract of insurance with respondent No.5/owner. (9) Shri M.K.Bhaduri, learned counsel for respondent No.5/owner argued that the testimony of Punitram, A.W.-1 could not be relied on because he is not an eye-witness. Banshilal, A.W.-2 had admitted in cross-examination in paragraph 4 that the deceased was seated in the trolley and not on the engine of the tractor at the time of accident. It was also urged that respondent No.4, who was the best witness of the accident being the driver, had also deposed that a trolley was attached to the tractor at the time of accident and the deceased had fallen from the trolley. It was admitted by the appellant that on the date of accident the trolley was insured by it. On these premises, it was argued that liability to pay compensation was rightly fastened on the appellant/insurance company. Reliance was placed on an order passed by a Division Bench of this Court on 24-08-2007 in Royal Sundaram Alliance Insurance Company Limited vs. Jhool Baiand others (of which 1 was a member) in Miscellaneous Appeal (C.) No.85/2007. (10) Having heard the rival contentions, I have perused the record. In Royal Sundaram Alliance Insurance Company Limited vs. Jhool Bai and others (supra), it was observed as under: "13. The contentious issue raised by learned counsel for the insurance company that the driver of the tractor trailer did not possess a valid driving licence for driving a tractor at the time of accident is liable to rejection. It is not in dispute that the driver of the tractor possessed a valid driving licence on the date of accident for driving light motor vehicles. 14. A "light motor vehicle" is defined under Section 2(21) of the Act as under: Sec. 2(21): "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor (emphasis supplied bv us) or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms; 15. A "tractor" is defined under Section 2(44) of the Act as under: Sec. 2(44): "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller; 16. A "trailer" is defined under Section 2(46) of the Act as under: Sec. 2(46): "trailer" means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle; 17. Thus the definition of "light motor vehicle" includes a "transport vehicle". A "tractor" is also included in the definition of "light motor vehicle". 18. In Nagashetty vs. United India Insurance Co. Ltd., 2001 (II) MPWN 104 (Supreme Court), in a similar situation, the Apex Court has held as under: fe.. %-^- ^ We are unable to accept the submissions of Mr. S.C.Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under section 10 a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S.C.Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. tt would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle. 19. Placing reliance on the judgment of the Apex Court in Nagashetty vs. United India Insurance Co. Ltd. (supra), we hold that since the driver of the tractor had a valid and effective driving licence to drive the tractor, he would not become disabled to drive it merely because a trailer was attached to the tractor." (11) Placing reliance on Royal Sundaram Alliance Insurance Company Limited vs. Jhool Bai and others (supra) the contention of learned counsel for the appellant/insurance company that respondent No.4/driver did not possess a valid and effective driving licence to drive the tractor is rejected. (12) It is the case of respondents No.1 to 3/claimants that the deceased was travelling on the engine of the tractor while he met with the accidental death and that after detaching the trolley the tractor was taken for greasing to the servicing centre and was returning therefrom. This fact is substantiated by the F.1.R., Ex.P-2 andthe seizure memo, Ex.P-5 because in the F.1.R., Ex.P-2 lodged by the father of the deceased, it has not been mentioned that the trolley was attached to the tractor at the time of accident. Had it not been so and the deceased was travelling in the trolley at the time of accident, the trolley would have certainly been seized by the Police. The seizure memo, Ex.P-5 clearly shows that only the tractor was seized and not the trolley. Punitram, A.W.-1, who lodged the F.I.R., Ex.P-2, was examined by the claimants and he has deposed that the deceased had fallen from the tractor. In cross-examination, no question was asked to this witness that at the time of accident the deceased was in the trolley, which was attached to the tractor. Banshilal, A.W.-2 has categorically deposed in examination-in-chief that the deceased was travelling on the tractor and had fallen due to sudden application of brake by the driver at the speed-breaker. His testimony in cross- aS'Sa?a!f-,. j I,,. ^ examination that a trolley was also attached to the tractor is belied by his statement in the next breath that he did not know what was loaded in the trolley. If this witness is to be believed, it would emerge that the tractor was not proceeding towards the farm house of respondent No.5/owner. The F.1.R., Ex.P-2 also substantiates the above fact and, therefore, an inference can safely be drawn that the tractor was not being used for any 'agricultural purpose', but was returning after greasing at the servicing centre at Veergaon. Admittedly, the trolley contained 'stone dust', which was to be sprinkled on the road near the farm house of respondent No.5/owner. It can, therefore, safely be held that the tractor/trolley was not being used for agricultural purpose at the time of accident. (13) The testimony of Ghanshyam, respondent No.4 that the deceased was seated on the trolley at the time of accident is wholly unworthy of credit as there is no element of any doubt that had it been so the trolley would also have been seized by the Police along with the tractor. In my considered opinion, the testimony in cross-examination in paragraphs 3 and 4 of Banshilal, A.W.-2 cannot be relied on. Respondent No.5/owner did not enter the witness box to prove the purpose for which the tractor/trolley was being used at the time of accident. It is pertinent to note that in paragraph 12 of the award, the MACT has also recorded. a finding that Laxman Marar was travelling on the tractor and had died due to a fall near Veergaon Canal. The MACT did not record ,a finding that a trolley was attached to the tractor at the time of accident or that the deceased was travelling in the trolley. 10 J^ (14) Once the MACT recorded a finding that the deceased was travelling on the tractor to which a trolley was not attached, a fundamental breach of the policy of insurance is automatically established because the certificate of registration, Ex.C-1 ofthe tractor clearly shows that no person other than the driver was permitted to travel on the tractor. The facts and circumstances mentioned above clearly justify the conclusion drawn by the MACT that the deceased was travelling on the tractor at the time of accident. The evidence, oral as well as documentary, also lead to an irresistible inference that a trolley was not attached to the tractor at the time of accident. (15) No evidence was led by respondents No.4 and 5, i.e., the driver and the owner respectively, to establish that the tractor was being used for agricultural purposes at the time of accident. Respondents No.1 to 3/claimants had specifically mentioned in paragraph 20 of the application under Section 166 of the Act that after detaching the trolley carrying the stone dust, respondent No.4/driver along with the helper Laxman Marar had taken the tractor to the servicing centre for greasing and were returning from the servicing centre when the accident occurred. This fact has not been denied in paragraph 4 of the written statement filed by respondents No.4 and 5 and, therefore, must be deemed to be an admitted fact. Nowhere in the written statement has this assertion by respondents No.1 to 3/claimants been denied that after detaching the trolley, the tractor had been taken to the servicing centre for greasing and was returning from the servicing centre at the time of accident. In this view of the matter, it is absolutely clear that by no streteh of imagination it could be held that the tractor was being used for agricultural purpose at the time of accident. fy^ " ft. .^-S-K-,.. I ^ssSiSSSi ^ 1 '•<®as!"a-sg ^ Vv^ ^ ^^ 11 ,s (16) From the above discussion, the following points emerge: (A) the deceased was seated on the tractor driven by respondent No.4 at the time of accident and thus, a fundamental breach of the policy of insurance had occurred, (B) at the time of accident, the trolley was not attached to the tractor, (C) at the time of accident, the tractor was not being used for agricultural purpose, and (D) in the above circumstances, the appellant/insurance company was not liable to pay compensation either statutorily under Section 147(1) of the Act or under the contract of insurance because risk of the helper travelling on the tractor with the driver was not covered by the insurance company. (17) In view of the above findings, the MACT acted with illegality in fastening liability to pay compensation on the insurance company. The appeal, therefore, deserves to be allowed and the impugned award against the appellant/insurance company is liable to be set aside. (18) In the result, the appeal is allowed. The impugned award, whereby liability to pay compensation was fastened on the insurance company, is set aside. The appellant/insurance company is not liable to pay compensation, which shall be recoverable from respondents No.4 and 5, i.e., the driver and the owner respectively. The appellant is ..iS^'.—A"1'^*. •y^"^ '%., 12 ^ at liberty to initiate execution proceedings to recover from respondents No.4 and 5 the compensation, ifany, paid by it. Sd/- Dilip Raosaheb Deshmukh Judge Gopaf