FAO No. 1857 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1857 of 2005 Date of decision:9th August, 2010 United India Insurance Company Limited, Sector-17, Chandigarh ....... Appellant Versus Smt. Premwati and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Vinod Gupta, Advocate for the appellant. Mr. Lokesh Sinhal, Advocate for respondent No.6. Mr. Adarsh Jain, Advocate, for respondent No. 7. None for respondent No. 8. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K. Kannan, J (oral) I. The lis 1. The Insurance Company challenges the award passed against it on the ground that the deceased had taken a lift with the driver of the tractor and seated himself on mud guard. He got thrown out of tractor when it was in motion and got killed. The Insurance Company pleads that a tractor is not meant to carry passengers and had sitting capacity as per the Registration FAO No. 1857 of 2005 2 Certificate book of only one that is meant for the driver. Further, learned counsel appearing for the Insurance Company pleads that the person, who died, was being carried on the mudguard of the tractor and there was no insurance cover for a person travelling in the tractor. The tractor is neither a passenger vehicle nor a goods vehicle where persons could be carried and the Insurance Company for the tractor will, therefore, be not made liable. II. Statutory meanings for tractor, trailer and goods carriage 2. The 'tractor' is defined under Section 2(44) of the Motor Vehicles Act “as 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.” The tractor by itself cannot therefore be treated as a goods carriage. It will become a goods carriage only if it is attached to a trailer which is defined under Section 2(46) of the Motor Vehicles Act, where “the 'trailer' means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle.” It may be noticed that a 'goods carriage' which is defined under Section 2(14) 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.” III. Compulsory insurance to a workman covered under the WC Act extends only to persons named under Section 147 3. It is commonplace knowledge that a trailer which is attached to a motor vehicle (tractor) is constructed only for the FAO No. 1857 of 2005 3 purpose of carriage of goods. In the scheme of things normally a goods carriage shall not carry passengers. However, Section 147 makes provision for compulsory insurance for the owner of the vehicle as bound to cover the liability in respect of death or bodily injury sustained by an employee arising out of and in the course of employment, who shall have a right of claim under the Workmen's Compensation Act. Such an employee shall be either (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle. It could be therefore seen that a workman carried in a goods carriage who is attracted to the provisions of the Workmen's Compensation Act shall always enjoy a compulsory insurance cover. If a workman travels in a goods carriage namely a trailer, an ‘Act policy’ is bound to cover the risk to the insured’s workman or his representatives in case he dies in the accident. Another type of situation where a passenger in a goods carriage would be protected is what is provided under Section 147(1)(a)(b)(i), when even an owner of the goods traveling along with goods in the vehicle would obtain an insurance cover. IV. A person travelling on mud guard is an unauthorised person 4. The Rules of Road Regulations of 1989 sets out under Rule 28 the following:- “28. Driving of tractors and goods vehicles.- A driver when driving a tractor shall not carry or allow FAO No. 1857 of 2005 4 any person to be carried on the tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward.” This rule makes a distinction between a driver driving a tractor and a driver of goods carriage which has a cabin. If it is a goods carriage, there could be a person other than the driver in a driver's cabin whose permitted number shall be prescribed in the registration certificate itself. If it is a tractor, there is no need of a reference even to the registration certificate. The workman carried in a goods carriage or a driver of any vehicle, who is a workman, shall always be entitled to an insurance cover. There is no compulsory insurance for a person other than the driver to travel in a tractor. We have already seen the tractor by itself is not a goods carriage and the compulsory insurance cover is only for a workman carried in a goods carriage or a driver, who is a workman. If therefore, a person is travelling on the tractor, who is not a driver but an unauthorised passenger, there was no need for compulsory insurance. V. Pay and recover principle is also not applicable 5. The pay and recovery principle apply only to situations where the claim is by a third party/workman and it is fully covered by the requirements of compulsory insurance under Section 147. If the Act does not require a policy to be taken for a traveller other than a driver of a tractor or to cover 3rd party risk, it means that there is no requirement of insurance at all FAO No. 1857 of 2005 5 and the question of making liable the insurer to pay and recover under section 149(4) proviso or under section 149(5) of the MV Act does not arise. VI. Conclusion 6. The Insurance Company could not have been made liable. The award passed against the insurer is clearly wrong, the award is set aside and the appeal is allowed. However, if any amount has been recovered by the claimant from the insurer, the insurer shall not recover the same from the claimants but they will have a right of enforcement only against the owner of the tractor who are arrayed as respondent Nos. 7 and 8. (K. KANNAN) JUDGE 9th August, 2010 Shivani Kaushik