Y' <2^ HIGH COURT OF CHHATTISGARH AT BILASPUR APIPELLANT Deifendant No. 2 RESPONDENTS Claimant No. 1 Claimant No. 2 M.A. (C) No. 321 OF 2010 Devendra Kumar Sethia, aged about 35 years son of Rajendra Kumar Sethia, resident of Dhawalpur, Via Parla, Police Station Khokhatara, District Kalahandi (Orissa). (Ownerofthevehicle) Versus 1. Smt. Jasoda Panigrahi, aged about 40 years, widow of Late Mastram Panigrahi. 2. Ashtami Panigrahi, aged about 6 years (Minor) D/o late Mastram Panigrahi, through natural guardian mother Smt. Yasoda Panigrahi, widow of late Mastram Panigrahi. Both are residents of Village Jayantpur, via Parla, Tahsil Dharamgarh, Police Station Khokhatara, District Kalahandi (Orissa). 3. Madho@ Damru Nag, aged about 32 years son of Jagmohan Nag, Reisdent of Villag Kachhimdola, Police Station Junagarh, District Kalahandi (Orrissa). (Driver of the vehicle). 4. The Oriental Insurance Company Branch Office Near Satyam Cinema, Bhawnaipatna, District Kalahandi (Orissa) (Insurerofthe vehicle) ' Memo of appeal under Section 173 of the Motor Vehicles Act, 1988 Defendant No.1 (SB: Hon'ble Mr. N.K. Aaarwal. J.) Present : Shri Prafull Bharat, Advocate for appellant. ORAL ORDER (Passed on 26th day of March, 2010) iHeard on admission. 1. iThis is owner's appeal directed against the award dated 13.01.2010, passed by the Additional Motor Accident Claims ITribunal, Gariyaband, District Raipur (for short 'the Tribunal') in Claim Case No. 51/2009, whereby and whereunder an amount of Rs. 1,85,000/- has been awarded in favour of the claimants ^"?^@ii?s y 2. alongwith interest @ 7.5 percent per annum, holding the appellant iresponsible for its payment; exonerating the Insurance Company from its liability to pay compensation. iThe brieffacts ofthe case are as under: i. On 27.09.2008, Jitendra Panigrahi (since deceased), while sitting in the Tractor trolley bearing registration No. OR-08-D-6528, the said Tractor turned turtle due to rash and negligent driving of respondent No.3 i.e. Driver of the Tractor and Jitendra Panigrahi succumbed to the injuries sustained in the said accident. ii. The claimants i.e. respondent No. 1 & 2 preferred a claim petition under Section 166 read with Section 140 of the Motor Vehicles Act against the driver, owner and insurer of the Tractor claiming Rs. 34,26,OOO/- as compensation for the death of deceased in the said accident. iii. The appellant as well as the respondent No. 3, by filing their written statements, admitted the accident. It was further pleaded that the vehicle being insured with the respondent No. 4/insurance company, it is for the ihsurance company to pay compensation to the claimants. iv. The insurance company admitted the issuance of the policy but has specifically pleaded that the deceased was sitting the trolley; the liability of such person sitting in the trolley is not required to be covered under the policy; sitting capacity of tractor is only one; as per conditions, carriage of passengers/labour/any other person in the tractor is prohibited and therefore, the insurance company is not liable to indemnify the insured. V. The Tribunal, on a close scrutiny of evidence led by the parties and the material available on record, held the driver of the Tractor responsible for the said accident and awarded aforesaid amount as compensation to the claimants. However, hetd liable the appetlant & the ?y Driver for its payment and exonerated the insurance company from the liability to pay compensation. IShri Prafull Bharat, learned counsel appearing for the appellant, |after admitting the fact that policy issued for respondent No. 4 is for Ithe agricultural purposes, would contend that as per cross lexamination of Narsingh (AW-2) it is clear that the deceased was 1 sitting in the tractor trolley attached with the tractor alongwith his goods; as held by Supreme Court in case of M/s Natwar Parikh land Co. Ltd. v. State of Karnataka and Others, a tractor jattached with trolley would constitute a "goods carriage" under Section 2(14) and consequently transport vehicle under Section 247 of the MV Act, the owner of goods or his representative is lentitled to travel in the goods vehicle alongwith his goods in terms |of Section 147 of the MV Act, and therefore, the Tribunal has erred 'in exonerating the insurance company from its liability to pay lcompensation. |1 have heard learned counset for the appellant and perused the 'orderimpugned. !The Tribunal has referred the case of the claimants in para 3 of its ; award according to which the deceased was sitting in the offending jtractor with the permission of its driver. It is nowhere said that he was sitting as owner or representative of owner of goods being jcarried in the tractor trolley. The Tribunal has referred the case I put-forth by the appellant as well as driver of the tractor in para 2 & j4 of the award according to which nowhere it has been said that |the deceased was sitting in the tractor trolley as owner of the jgoods or representative of owner of goodsalongwith the goods. 2005 (7) SCC 364 8. 9. iThe Tribunal, by referring rule 28 of Rules of Road Regulations, 1989 framed by the Central Government under Section 118 of the MV Act, and by referring the policy conditions (IMT-39) in para 11 & 13 of its award, has held that the deceased was sitting in the Itrolley contrary to Rules of Road Regulations and also contrary to l policy conditions, also held that the sitting capacity of tractor-cum- itrolley is only one i.e. driver and therefore the insurance company |cannot be hetd responsible to indemnify the appellant. As per rule 28 of Rules of Road Regulations, 1989, a driver when Idriving a tractor is prohibited to carry or allow any person to be carried on tractor and driver of goods carriage is prohibited to carry |in the driver's cabin more number than that is mentioned in the 1 registration certificate andshall not carry passengers for hire or reward. |The Supreme Court in case of National Insurance Co. Ltd. v. Cholleti Bharatamma and Others , has held in para 19 of its jjudgment that owner of the goods means only the person who .travels in the cabin of the vehicle. Admittedly, there is no cabin in the Tractor trolley, the sitting capacity of the tractor is only one i.e. 1 driver. Rule 28 of Rules of Road Regulations, 1989, prohibits carrying of any person in the trolley. In such situation, even the tractor lattached with trolley satisfies the definition of goods carriage, in iview ofjudgment of Supreme Court in case ot National Insurance Co. Ltd. v. Cholleti Bharatamma and Of/?e/"s (Supra), a person jsitting in the trolley cannot be said to be a person sitting as owner 1 or representative of the owner of the goods. ; 2008 (l)SCC 423 w 10. 11. As per the policy, a tractor trolley can be used by the lappellanVowner only for agricultural purposes. Even if it is held Ithat the trailer attached with tractor satisfies the definition of goods carriage, the policy of insurance does not permit the appellant to 1 use it for carrying goods of other person and therefore, it cannot be isaid that the deceased sitting in the tractor was covered under the ^policy of insurance, as the said tractor and trolley was used in ibreach of condition of policy i.e. for carrying of goods of another ;person which is certainly not an agricultural purpose. 'ln view of foregoing, 1 do not find any substance in the appeal ; preferred by the appellant. The appeal being devoid of substance is liable to be and is hereby dismissed at admission stage. No order as to costs. — Sd/- N.K. Agarwal Judge ^hu