IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 350 of 2005 & FAO No.456/2005 Judgment reserved on 19.6.2008 Date of Decision: June 27, 2008 Oriental Insurance Company ..Appellant. Versus. Bimla Devi & ors. ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant: Mr. G.D.Sharma, Advocate. For the Respondent(s): Mr. Vivek Thakur, Advocate, for respondent No.1. Mr. Neel Kamal Sharma, Advocate, for Respondent No.2. __________________________________________________________________ Deepak Gupta, J.( Oral). These two appeals arise out of an award of the Motor Accident Claims Tribunal, Hamirpur dated 18.5.2005 whereby he has awarded compensation of Rs.2,92,000/- in favour of the claimants and held the Insurance Company liable to pay the amount by holding that the deceased was traveling on the tractor for the purpose of ploughing the fields. The Insurance Company has filed FAO No. 350 of 2005 challenging this award on the ground that the - 2 - deceased was a gratuitous/unauthorized passenger in the tractor and the Insurance Company could not be held liable. The claimants have filed FAO No. 456 of 2005 for enhancement of compensation. The undisputed facts are that the deceased Sunil Kumar died in an accident involving tractor No. HP-28- 1444 . The tractor turned turtle and the deceased died underneath the tractor. The claimant is the mother of the deceased. She filed a claim petition in which it is alleged that Sunil Kumar after cultivating the fields was going to park the tractor on the road side when the accident occurred. The tractor at the relevant time was owned by Chuhru Ram and driven by Jiwan Lal and insured with the Insurance Company. The owner and driver in their written statement did not say that the deceased was working as labourer nor they took up the plea that he was a labourer. In para 10 of the written statement, it was only stated that during the course of parking the tractor, the accident occurred due to negligent act of the deceased. In para 24 of the written statement, it was stated that the deceased appeared suddenly and the accident took place. The Insurance Company took up the plea that - 3 - the deceased was a gratuitous/unauthorized passenger and hence it was not liable. PW1 proved the FIR Ex.PW1/A lodged at the instance of PW5 Kanwarjit Singh. In the said FIR, it is stated that after the fields were cultivated, the tractor driver asked the deceased to accompany him to the road side to get the tractor parked. When the tractor was being taken to be parked, it was being driven at a high speed by Jiwan Lal and when it went on the road it jerked and turned turtle and the deceased who was sitting on the tractor fell down and was crushed underneath the tractor. PW2 is the mother of the deceased who has stated that her son used to work as a Mistry. PW3 is the father who has also stated that after the fields were got cultivated the tractor driver asked the deceased to accompany him to get the tractor parked. PW5 Kanwarjit Singh repeated what has been stated by him in the FIR. In cross-examination, by the tractor owner, he has stated that he along with the deceased Sunil Kumar was sitting on the tractor. RW1 is Jiwan Lal driver of the tractor. According to him, the accident took place as the steering got locked - 4 - and he found that the deceased had come under the tractor. Keeping in view the entire evidence on record, it is more than apparent that the deceased was traveling in the tractor. This is apparent from the FIR and the statements of the witnesses. A perusal of the policy shows liability to passengers is not covered under the terms thereof. Shri G.D.Sharma, 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. versus Brij Mohan and others (2007) 7SCC 56 and United India Insurance Co Ltd. versus Serjerao and Ors, AIR 2008 SC 460. 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 - 5 - 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. The Apex Court as well this Court has time and again held that no passengers are allowed to be carried in a tractor. The Insurance Company cannot be made liable for passengers being carried in a tractor. A half hearted argument was raised by the learned counsel for the owner-cum- driver that there was a cover note mark “A” which covered the liability in respect of two labourers. This cover note has not been proved. The policy does not show that there was any coverage for passengers in the tractor. Even if this cover note is accepted to be correct, there is no material on record to show that the deceased was engaged as a labourer on the tractor. In fact this is not the case set up by the owner or driver of the tractor. As far as the quantum of compensation is concerned, I find that the amount of Rs. 2,92,000/- granted in this case is in fact slightly on the higher side. It calls for no further enhancement. - 6 - In view of the above discussion, FAO No. 456/2005 filed by the claimant is dismissed. FAO No. 350/2005 filed on behalf of the Insurance Company is allowed and the Insurance Company is exonerated from the liability to pay compensation. Both the appeals are disposed of in the aforesaid terms. No order as to costs. June 27, 2008 ( Deepak Gupta ), J. s.