IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 458 of 2005. Judgment reserved on 19.6.2008 Date of Decision: June 27, 2008 New India Assurance Co. Ltd. ..Appellant. Versus. Anita Devi & ors. ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant: Mr. B.M.Chauhan, Advocate. For the Respondent: Mr. J.R.Thakur, Advocate, for respondent No.1. Mr. Ramesh Sharma, Advocate vice Mr. N.K.Thakur, Advocate, for respondent No.4. Mr Surinder Saklani, Advocate for respondent No.2. Deepak Gupta, J.( Oral). The short question which arises in this appeal is whether the appellant - Insurance Company can be held liable to satisfy an award in respect of a person traveling on a tractor. The undisputed facts are that the deceased Kuldip Kumar was traveling on a tractor bearing registration No.HP21-1971 owned and driven by Vijay Kumar. The tractor was insured with the appellant-Insurance Company. The case of the claimants –respondents - 2 - was that the deceased was a labourer and had been engaged by the owner-cum-driver of the tractor and was traveling in the tractor in the capacity of a labourer. The owner-cum-driver also took up a plea that the deceased was working as a labourer on the tractor. The learned Tribunal came to the conclusion that the accident had occurred due to the rash and negligent driving of the driver and that the claimants are entitled to Rs.2,52,000/- as compensation. These findings are not under challenge. The learned Tribunal relying upon the judgment of this Court in Manjit Singh versus. Rattan Singh and others, AIR 1997 (HP) 21, held that the Insurance Company was liable to pay the compensation. This finding has been challenged in the present appeal. Shri B.M.Chauhan, learned counsel for the appellant- Insurance company contends that in view of the law laid down by this Court in Sita Devi and others v. Dharambir and others, 2006 ACJ 2832 and Surjit Singh and others v. Jagraj Singh and another, Latest HLJ 2006(HP) 795, the Insurance Company could not have been held liable to pay compensation in respect of a labourer traveling on the tractor. He has also placed reliance on the judgment of the apex Court in Oriental Insurance Company Ltd. - 3 - versus Brij Mohan and others (2007) 7SCC 56 and United India Insurance Co Ltd. versus Serjerao and Ors, AIR 2008 SC 460. He also contends that the deceased was not a labourer and was a gratuitous passenger and hence the Insurance Company is not liable. The law is extremely well settled that the Insurance Company is not required to cover the liability in respect of any passenger traveling in a tractor. A tractor is not adapted for carriage of goods or passengers and under the provisions of the Motor Vehicles Act, the Insurance Company cannot be forced to cover liability in respect of passengers traveling in a tractor. Having said so, it may be clarified that there is nothing which prevents the Insurance Company from giving wider coverage and also covering liability which it otherwise was not liable to cover. The cover note of the policy has been exhibited as Ex.P2 and the policy of Insurance as Ex.P4. Both of them show that there is coverage for two labourers. The Insurance Company, therefore, by a voluntary act covered the liability in respect of two labourers also. Under IMT of the policy, the Insurance Company has charged extra premium of 15 per labourer covering - 4 - extended liability under the Workmen’s Compensation Act, 1923, Fatal Accidents Act, 1955 or under Common law. Therefore, the Insurance Company by contract had agreed to pay the liability and has to be held liable. The question which now has to be decided is whether the deceased was a labourer employed with the tractor or not? In the claim petition, all that is mentioned is that the deceased was a labourer –cum- mason by profession. It is not specifically stated that he was employed as a labourer on the tractor. In the written statement filed by the owner cum-driver it is stated that that the deceased was working as a labourer on the tractor. The Insurance Company in its reply took up the plea that the deceased was an unauthorized passenger on the tractor. Smt. Anita Devi is the widow of the deceased. She states that her husband was working as a mason and was earning Rs.4500/- per month. In cross-examination, she denied the suggestion that the deceased was employed as labourer on the tractor or that he was only earning Rs.500 – 700/- per month. She denied the suggestion that she had taken any money from the owner of the tractor. - 5 - PW2 Prem Chand is a colleague of the deceased. According to him, both he and the deceased used to work as mason and were getting Rs.150/- per day. In cross- examination, he denied the suggestion that the deceased was working as a labourer with the tractor involved in the accident. PW4 Surinder Kumar is the person who lodged the FIR Ex.PW3/A. In the FIR it is recorded that on 30.12.2001 the witness signaled to stop the tractor. The tractor was being driven by Vijay Kumar. He gave a lift to witness Surinder Kumar and the deceased. Vijay Kumar was driving the tractor at a high speed and then the accident occurred. He did not suffer any injuries in the accident. In court, he took up a different stand. He admits that both he and the deceased were sitting in the tractor but according to him he does not now how the accident took place. He further states that the tractor was being properly driven by Vijay Kumar. In cross-examination, he states that Kuldip Kumar used to work as a labourer with VijayKumar during those days. According to him, Kuldip Kumar had to go on the tractor as they had to collect the trolley of the tractor from Nadaun and then to load the same with grass. In cross-examination, by the Insurance - 6 - company, he has admitted that the FIR was registered at his instance. He also admits his signatures on the same. He, however, denied that he told the police that both he and Kuldip Kumar had taken a lift in the tractor. Interestingly, this witness states that as far as he is concerned, he has taken a lift in the tractor and now his version is that the deceased was sitting in the tractor before he took a lift. He also states that in his previous statement that both he and Kuldip Kumar were standing on the road is also correct. No reliance whatsoever can be placed on the statement of this witness. It is obvious that he has been won over by the owner of the tractor. Surprisingly, what he stated in Court is totally different to what he had reported to the police at the first instance. Even in Court, he kept shifting his version. PW5 is the father of the deceased. According to him, his son died in a tractor accident and he was working as a labourer on the tractor and was earning Rs. 4500/- per month. In cross- examination, he states that his son was working on the tractor for the last 3 – 4 years. Vijay Kumar owner-cum-driver of the tractor appeared as RW1. According to him, the deceased was - 7 - sitting on the tractor as a labourer. He states that Surinder Kumar PW4 and the deceased had boarded the tractor together. According to him, the accident took place due to failure of the brakes. He states that the deceased had been engaged as labourer and they were to go to Nadaun to pick up a trolley and thereafter had to load grass in the trolley. He admits that both Kuldip Kumar and Surinder Kumar were sitting on the mudguard of the tractor. After taking into consideration the entire evidence as aforesaid, it is apparent that there is a serious dispute between the widow on the one side and the parents of the deceased on the other side. It appears that there has been some settlement between the parents and the owner of the tractor. A suggestion has been put that some money has been paid to them. Even if that is not accepted, the version of the widow and PW2 cannot be disbelieved. As observed above, PW4 Surinder Kumar has given a totally different version in FIR. The first information was lodged immediately after the accident and at that time PW4 had no axe to grind. His version was that the deceased and he had taken a lift. The story now set up that the deceased was a labourer appears to be false. - 8 - This story has been set up only with a view to fasten the Insurance Company with the liability to pay compensation. In the written statement, the owner-cum- driver had not put up the version that the trolley was to be collected from Nadaun and then grass had to be loaded on it. It is apparent that this story has been cooked up at a later stage to avoid liability to pay compensation. In view of the above discussion, I am of the view that the deceased was a gratuitous/unauthorized passenger on the tractor and the Insurance Company could not have been held liable to pay the compensation. Even in respect of a labourer traveling in a tractor, the Apex Court has held that the Insurance Company cannot be held liable. Therefore, the appeal filed by the Insurance Company is allowed and it is exonerated from its liability of paying any compensation but the liability to pay compensation shall be of Vijay Kumar i.e. the owner – cum- driver of the tractor. The appeal is disposed of in the aforesaid terms. No costs. June 27, 2008 ( Deepak Gupta ), J. s. - 9 -