HIGH COURT OF CHHATTISGARH AT BILASPUR Sinaie Bench : Hon'bie Shri Diiio Raosaheb Deshmukh, J. Miscettaneous Aooeal No.789 of 2006 United India Insurance Company Limited versus Smt. Rambai and others .^2 ORDER Postfor '7-07-2008 Sd/- ^ Dilip Raosaheb Deshmukh Judge •^s^- / ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. Miscellaneous Appeal No.789 of 2006 Appellant Non-Applicant No.3 ResDondents United India Insurance Company Limited, Branch Office, Main Road Complex, Rajendra Nagar, Bilaspur (C.G.) versus Smt. Rambai, aged 45 years, wife of Ramnath Kanwar, resident of Pathiapali, Chowki Urga, Police Station and District Korba (Chhattisgarh) • Claimant Chhatram Kewat, ^ged 21 years, son of Kanwal Singh (tractor driver), resident of Karainara, Chowki Urga, Police Station and District Korba (Chhattisgarh) Ramnath Kewat, aged 49 years, son of Shriram Kewat (truck owner), resident of Pathiapali, Chowki Urga, Police Station and District Korba (Chhattisgarh) Non-ApDlicants No.1 & 2 ADDeal under Section 173 ofthe Motor Vehicles Act, 1988 Present: Shri H.B.Agrawal, Senior Advocate with Ms. Rinki Tamrakar, counsel for the appellant. Shri Ramakant Pandey, counsel for respondent No.1. Shri Ram Kumar Tiwari, counsel for respondents No.2 and 3. ORDER (Passed on this 7^dav of July, 2008) -, This is an appeal by the insurer. The Additional Motor Accidents Claims Tribunal, Korba (henceforth 'the tribunal') has in s'.i X. r .^s^. B^ ^ Claim Case No. 38/05 passed an award dated 27-02-2006 granting compensation of Rs.1,75,000/- againstthe insurer. (2) Admittedly, respondent No.l/claimant Smt. Rambai is the mother and respondent No.S/owner of the tractor No.CGIOA/5805 (henceforth 'the tractor') is the father of the deceased Hemant Kumar, a student of B.A. Ist year. It is also not disputed that Hemant Kumar was travelling on the tractor driven by respondent No.2 Chhatram and died due to the tractor turning turtle as a result of a bear suddenly coming in front of the tractor. It is also not in dispute that no trolley was attached with the tractor at the time of accident. (3) Shri H.B.Agrawal, learned Senior Advocate appearing on behalf of the appellant/insurer urged that carrying of a gratuitous passenger on the tractor is a fundamental breach of the policy of insurance. Therefore, the tribunal ought to have exonerated the insurer from the liability to pay compensation. Learned Senior Advocate submitted that the insurance company has deposited Rs.50,000/- in the tribunal pursuant to an order dated 06-08-2005 passed by the tribunal under Section 140 of the Motor Vehicles Act, 1988 (henceforth 'the Act'), Rs.25,000/- as statutory deposit under Section 173 of the Act and Rs.50,000/- pursuant to an order dated 24-01-2007 passed by this Court. Learned Senior Advocate urged that the insurance company be given the right to recover the amount of Rs.1,25,000/- from respondent No.S/owner of the tractor Ramnath Kewat. ffin ,?;"»'-ea, ^3^y 'r'-u_^' ^^£J^^J!?L^ ^ (4) Shri Ramakant Pandey, learned counsel for respondent No.l/claimant argued in support of the impugned award while contending that the insurer has failed to prove breach of policy of insurance. (5) Shri Ram Kumar Tiwari, learned counsel for respondents No.2 and 3, i.e., driver and owner of the tractor also argued in support of the impugned award. (6) Having considered rival submissions, 1 have perused the record. Admittedly, the tractor was insured with the appellant on the date of accident. In the application under Sectian 166 of the Act, the claimant had squarely admitted that the deceased Hemant Kumar and one Rajendra Kumar were seated on the tractor with the driver Chhatram, i.e., respondent No.2. A tractor has been defined in Section 2(44) of the Act as under: "Sec. 2(44): "tractor" means 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 definition indicates that besides the driver of the tractor, carrying of any other passenger on the tractor whether for hire or reward is prohibited. A perusal of the policy of insurance filed in the tribunal shows that additional premium was paid only for the driver of the tractor. The deceased having travelled on the tractor could also not be termed as a third party so as to fasten statutory liability on the insurance company. By carrying gratuitous passenger on the tractor 3 fundamental breach of the policy of insurance is established. The ^.I, '"sss"\. '^»,.^y v.fc tribunal thus erred in fastening liability on the insurer for payment of compensation which rests squarely with the respondent No.S/owner of the tractor. In this view of the matter, the appeal deserves to be allowed. (7) In the result, the appeal is allowed. The appellant/insurer is exonerated from the liability to pay compensation and may initiate execution proceedings for recovering the compensation already paid by it from the respondent No.S/owner of the tractor. Liability to pay compensation awarded by the tribunal is fastened on the respondent No.S/owner of the tractor. Sd/- S Dilip Raosaheb Deshmukh Judge Gopal