1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 994 OF 2009 The New India Assurance Company Ltd. a Subsidiary of the General Insurance Corporation of India and a company Incorporated under the Companies Act having one of its Divisional office at Adalat Road, Aurangabad Through its Senior Divisional Manager Shri. Vishwas s/o. Bansi Gayakwad, Age 52 yrs., Occu. Service at The New India Assurance Co. D.O.No. 1 Adalat Road, Aurangabad. ....Appellant. Versus 1. Sitabai @ Seema w/o. Arjun Pingale R/o. Gangawadi, u/v. Talwada, Tk. Georao, Dist. Beed. 2. Vitthal s/o. Arjun Pingale, 3. Rangnath Eknath Yadav, 4. Shaikh Mukhid Shaikh Abdul, R/o. Talwada, Tk. Georai, Dist. Beed. ....Respondents. Shri. Ajit B. Kadethankar, Advocate for the appellant. Shri. N.K. Tungar, Advocate for the respondents 1 and 2. Shri. R.V. Gore, Advocate for respondent Nos. 3 and 4. CORAM : R.K. DESHPANDE, JJ. DATE : 9th September, 2009 2 ORAL JUDGMENT : 1. By an order dated 28.4.2009 passed by this Court, it was made clear that the matter shall be disposed of at the stage of admission and accordingly, record and proceedings were called. This was made further clear to the parties by an order dated 21st of July 2009. Hence, the matter is taken up for final disposal at the stage of admission by consent of parties. Admit. 2. This is an appeal by the Insurance Company, challenging the judgment and award dated 16.7.2008, passed by the learned Member of the Motor Accident Claims Tribunal, Beed in Motor Accident Claims Petition No. 5/2003. By this award, the appellant Insurance Company along with the owner of tractor bearing No. MH-23/A-9473 were held jointly and severally liable to pay an amount of Rs. 2,00,000/- towards compensation on account of death of Arjun Pingale in the motor accident occurred on 16.12.1993. The Tribunal has further held that the claimants shall be entitled to Rs.5,000/- towards consortium on account of death of her husband and Rs.2,000/- towards funeral charges and cost of the petition. 3. The learned Member of the Tribunal has recorded the finding that the deceased Arjun was sitting on the Madgad of the tractor, which itself shows that the driver was negligent and he ought not have to allowed 3 Arjun to sit on the Madgad of the tractor and therefore, the owner of the tractor cannot run away from his liability. It has further recorded the finding that when the tractor is being used for the agricultural purposes, there is no doubt that it will always be used along with trolley for carrying agricultural functions and therefore, when the trolley is used along with tractor, it presupposes that there will be labourers also. In respect of the liability of the Insurance Company, there is no specific finding recorded as to whether there was a breach of insurance policy or not. However, it has been held that it is internal dispute between the insurer and insured and the Insurance Company is at liberty to take steps to prove such breach of policy against the owner, if it desires to do so. 4. After going through the findings recorded by the Tribunal, I am of the opinion that the assumption by the learned Member of the Tribunal that when the tractor is being used for the agricultural purposes, there is no doubt that it will always be used along with trolley for carrying agricultural functions, is not correct. The learned Member was also erred in assuming that when the trolley is used along with the tractor, it presupposes that there will be labourers also. The Tribunal further failed to record the findings on the following three important aspects. (i) Whether the deceased was travelling on a tractor as a labourer at the time of accident ? 4 (ii) Whether the Insurance Policy covers the risk of the labourer, if the deceased is to be considered as labourer travelling on the tractor ? and (iii) whether there was a breach of the terms of the Insurance Policy ? Unless the findings on these aspects are recorded, the Insurance Company cannot be held liable to indemnify the owner of the vehicle. In the absence of such finding being recorded by the Tribunal, I am left with no alternative, but to remand back the matter to the Tribunal for considering it afresh and to record the specific findings on the aforesaid aspects. 5. In view of the aforesaid position, the impugned judgment and award dated 16.07.2008 passed by the learned Member of the Motor Accident Claims Tribunal, Beed in MACP No. 5/2003 is quashed and set aside. The matter is remanded back to the Motor Accident Claims Tribunal, Beed for deciding it afresh in the light of the observations made in this order. 6. The parties stated that an amount of Rs.1,41,048/-, inclusive of Rs. 25,000/- towards statutory deposit paid in this Court at the time of filing of the appeal, has been deposited by the Insurance Company. The claimants have withdrawn an amount of Rs.1,00,000/- by furnishing 5 security. The security shall continue as it is till the final disposal of the claim petition by the Tribunal. Whatever the amount is deposited in this Court, shall be remitted to the Motor Accident Claims Tribunal, Beed immediately. The Tribunal shall not disburse the said amount to the claimants till the final decision of the claim petition. The amount shall be subsequently disbursed in accordance with the decision taken by the Tribunal. [ R.K. DESHPANDE, J. ] ssc/fa994.09