F.A.O. No. 2887 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH F.A.O. No. 2887 of 2008 (O&M) Date of Decision : 2.3.2010 Bajaj Allianz General Insurance Company Ltd. .......... Appellant Versus Tarun Kaura & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Ms.Supriya Singh, Advocate for Mr. Ashwani Talwar, Advocate for the appellant. None for the respondents. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 16442-CII of 2008 For the reasons stated in the application,C.M. is allowed, delay of 10 days in filing the appeal is condoned. F. A.O. No. 2887 of 2008 & C.M. No. 16443-CII of 2008 This appeal by the Insurance Company is directed against the award dated 24.4.2008, passed by the learned Motor Accident Claims Tribunal, Rupnagar (hereinafter referred to as “the Tribunal”), vide which the claim petition filed by the claimant / respondent No.1 under Section 166 of the Motor Vehicles Act (hereinafter referred to as “the Act), was allowed and the claimant was awarded compensation to the tune of Rs. 2,35,000/- F.A.O. No. 2887 of 2008 2 (Rupees two lac and thirty five thousand only) along with interest @ 6% per annum. It was further directed, that if the payment is not made within two months from the date of passing of award then the interest payable would be 9% per annum from the date of filing of claim petition till realization. The claim petition, besides the owner and the driver, was also contested by the appellant herein, by claiming, that the driver of the offending vehicle was not holding a valid driving licence at the time of accident. In view of the stand taken by the Insurance company the learned Tribunal framed issue No.3, which reads as under :- 3. Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of the alleged accident?OPR3” Issue No.3 was answered against the appellant by recording the following finding :- 21. Onus to prove issue No.3 was on the respondent No.3. During course of arguments it has been contended by learned counsel for the respondent No.3 that respondent No.1 was not holding a valid and effective driving licence at the time of accident as he was having the driving licence to drive tractor only and not trolley. As such, it was contended by learned counsel for the respondent No.3 that as respondent No.1 was not holding a valid and effective driving licence at the time of accident, the main condition of the policy was infringed, as such insurance company is not liable to pay any compensation. F.A.O. No. 2887 of 2008 3 22. I have considered this contention of learned counsel for the respondent No.3 and has also taken my self through the driving licence of respondent No.1, which has been proved on file as Ex. R2. It is clearly mentioned in the driving licence of respondent No.1 that he is authorized to drive the tractor vide that licence. In the considered opinion of this Court a person who has a licence to drive the tractor can drive tractor alongwith trolley also as trolley is an agricultural equipment. Hence, it is held that respondent no.1 was holding a valid and effective driving licence at the time of accident. This issue is also decided in favour of claimant and against respondent No.3.” The contention of the learned counsel for the appellant is, that the liability has been wrongly fastened on the Insurance company, as trailer itself is an independent motor vehicle, in view of the definition contained in the Motor vehicles Act. In absence of a valid driving licence to drive trailer along with the tractor, it was not permissible for the Tribunal, to have fastened the liability to pay compensation on the insurance company. In support of this contention reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Natwar Parikh & Co. Ltd. Vs. State of Karnataka and Others (2005) 7 Supreme Court Cases 364, wherein the Hon'ble Supreme Court has been pleased to lay down as under :- “23. In order to answer this issue, we have to examine briefly Section 2, which is the definition section in the M.V. Act, 1988. F.A.O. No. 2887 of 2008 4 In that connection, we reproduce herein below the following: 2. Definitions.- In this Act, unless the context otherwise requires, * * * * (14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods; * * * * (28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimetres; * * * * (44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than F.A.O. No. 2887 of 2008 5 equipment used for the purpose of propulsion); but excludes a road- roller; * * * * (46) "trailer" means any vehicle, other than a semi-trailer and a side- car, drawn or intended to be drawn by a motor vehicle; (47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle." 24. Section 2(28) is a comprehensive definition of the words "motor vehicle". Although, a "trailer" is separately defined under section 2(46) to mean any vehicle drawn or intended to be drawn by motor vehicle, it is still included into the definition of the words "motor vehicle" under section 2(28). Similarly, the word "tractor" is defined in section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore, the words "motor vehicle" have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles etc. A combined reading of the aforestated definitions under section 2, reproduced F.A.O. No. 2887 of 2008 6 hereinabove, shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself being a motor vehicle, the tractor- trailer would constitute a "goods carriage" under section 2(14) and consequently, a "transport vehicle" under section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under section 2(14) as a "goods carriage" and consequently, it falls under the definition of "transport vehicle" under section 2(47) of the M.V. Act, 1988.” On consideration, I find no force in the contention raised by the learned counsel for the appellant. The Hon'ble Supreme Court was not considering the validity of a driving licence, to drive the trolley along with the tractor, but was considering as to whether the trailer is to be treated as a separate motor vehicle for the purposes of taxation on the motor vehicles. It was in that context, that the trailer was held to be taken as an independent F.A.O. No. 2887 of 2008 7 motor vehicle. The judgment of the Hon'ble Supreme Court cannot be read to mean, that the person holding a driving licence to drive a tractor cannot drive, it with the trolley attached to it. Trolley is an agricultural equipment, therefore, the driver holding a driving licence to drive tractor can always drive tractor along with the trolley, and no fault can be found with the finding recorded by the learned Tribunal, nor it can be said that the driver was not holding the valid driving licence to drive the offending vehicle. The learned counsel for the appellant also placed reliance on the judgment of the Hon'ble Karnataka High Court in the case of National Insurance Co. Ltd. Vs. Thirakappa Ramappa Itagi and another 2002 ACJ 753 to contend that the tractor and trolley are required to be individually insured, to fasten any liability on the insurance company. The contention of the learned counsel for the appellant was, that as the trolley was not independently insured, therefore, no liability can be fastened on the appellant. This contention of the learned counsel for the appellant is again misconceived. The trolley is an agricultural equipment, which has to be attached with the tractor, it was for this reason that no such plea was raised before the learned Tribunal denying the liability for trolley being not separately insured, as contended by the learned counsel for the appellant. As no such plea was taken before the learned Tribunal, it is not open to the Insurance company to deny the liability by taking a new plea in this appeal. The agricultural equipment required to be attached to tractor for its use can not be independently insured. In absence of agricultural equipment, the F.A.O. No. 2887 of 2008 8 tractor can be of no use. The contention of the learned counsel, therefore, being misconceived deserves to be noticed to be rejected. No merit. Dismissed. 2.3.2010 ( VINOD K. SHARMA ) 'sp' JUDGE