- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 39 of 1997 THE ORIENTAL INSURANCE COMPANY LIMITED V/S NATHU LAL & ORS None present for the appellant / petitioner Mr.VINAY JAIN & Mr. MANISH SHISHODIA, for the respondent Date of Order : 18.2.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This appeal has been filed by the insurer, against the award of the Motor Accident Claims Tribunal, Bhilwara dated 21.8.96, passed in Motor Accident Claim Case No.82/94, decreeing the same for a sum of Rs.68,000/- alongwith interest, and Rs.200/- as costs. The claim was filed for compensation, on account of death of Smt. Bagadi, the wife of the claimant, who was said to be traveling in the tractor No. RRE 2793, said to be belonging, to defendant No.2, 3, 4, 5, and insured with defendant No.6. The precise case was, that the deceased was traveling from Kotadi to Lapiya, when the tractor reached near Loda Mahua from Aarjiya, the trolley overturned, and she died. The insurance company contested the claim on the ground, that the tractor was not insured for the purpose of - 2 - carrying passengers, of whatever nature. On this aspect issue No.4 and 5 were framed. The learned Tribunal decided these issues, by relying upon earlier judgments, in Oriental Insurance Company Vs. Hanuman, reported in 1992 ACJ 1083, Sajid Miyan Vs. Ganga reported in 1990 ACJ 54, and National Insurance Company Ltd. Vs. Abdul Majid reported in 1995 ACJ 619, decided the issues in favour of the claimants, and held the insurance company liable. Though nobody appears on behalf of the insurer- appellant, however, the matter being already very old, I have heard learned counsel for the claimants, so also learned counsel for the other respondent, who is appearing, and have gone through the record. The question, as to whether insurance company is liable, in respect of death of the passenger, being carried in the tractor/trolley, or even other goods vehicle, is now no more res-integra, in view of the recent judgments of Hon'ble the Supreme Court, in Oriental Insurance Co. Ltd. Vs. Brij Mohan & Ors., reported in (2007)7 Supreme Court Cases 56, and in United India Insurance Company Limited Vs. Serjera & Ors, reported in JT 2008(1) SC 82, wherein it has been held, that the insurance company is not liable for even labourers, traveling in the trolley of the tractor. In my view, in view of the aforesaid legal - 3 - position, there is no escape from setting aside the findings of the learned trial Court on issues No.4 and 5. Consequently, the appeal is allowed. The findings of the learned trial Court, on issues No.4 and 5 are set aside, and it is held, that the appellant-defendant No.6 insurance company is not liable for making payment of the compensation. However it is clarified, that since the amount payable under Section 140 has already been paid by the insurance company, it would be entitled to recover back the same from the owner insured concerned, likewise, the amount deposited by the insurer under Section 173, for filing the present appeal, shall also be paid to the claimants, and the insurance company would be entitled to recover back that amount also, from the insured in accordance with law. ( N P GUPTA ),J. /tarun/