Z] HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M. A.No.563of 2005 APPELLANTS RESPONDENTS Pyarelal and another. Versus Ghasiyaram and others. ORDER For Pronouncement of Order 7 .01.2011 Sd/- R.L. Jhanwar Judge T z^ HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.A.No.563of2005 APPELLANTS (NON-APPLICANTSl RESPONDENTS Claimants Non-applicant 1. Pyarelal, S/o Kriparam, aged about 26 years, 2. Kriparam Verma, S/o Dhanush Ram Verma, Both residents of village and Post Nangaldah, P/S and Tahsil Ghumka, District Rajnandgaon (C.G.) Versus 1. Ghasiyaram, S/o Shri Pachkor, aged about 35 years, 2. Gayanabai, W/o Qhasiyaram, aged about33years | Both residents of Village and Nangaldah, P/S and Tahsil Ghumka, ; District Rajnandgaon (C.G.) 3. United India Insurance Company Ltd., Branch Office, Kamthi Line, Rajnandgaon (C.G.) , APPEALUNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 Appearance: Shri S.C. Verma, counsel for the appellant. i Shri Shashi Bhushan,counsel for respondents No. 1 & 2. Shri DashrathGupta, counsel for respondent No.3. ORDER (Passed on''-) .01.2011) I This is an appeal by the owner against the order dated 4.2.2005 passed by the 1 Additional Motor Accidents Claims Tribunal, Rajnandgaon in Claim CaseNo. 72/2004 whereby the learned Claims Tribunal has awarded.Rs.-1,82,Q36/-.as total compensation to the respondents No. 1 & 2 /claimants and fixed the liability to pay compensation on the appellants. ; 2. Brief facts of the case, in a nutshell, are that on fateful day of 14.02.2004, Shailendra KumarVerma, a minor boy of aged 16 years, was wy%^ z-> Itii^-t:^ going to village Amlidih for bringing fodder by sitting 6n the tractor bearing No. C.G.04 D 3591and due to non-availability of the same, he was returning from the village Nangaldah. While in retuming, due to rash and negligent driving by its driver Pyarelal Verma, Shailendra Kumar Verma fell down from the tractor and came to beneath the wheel, which crushed Shailendra Kumar Verma on the spot. 3. On account of death of Shailendra Kumar Verma in the motor accident on 14.02.2004, the unfortunate parents of the deceased, preferred claim petition seeking compensation of Rs. 17.09.000/- pleading inter alia. By filing their written statements, the present appellants and respondent No.3 denied all the averments made therein. 4. Allthe parties led their eyidence before the Tribunal and the Tribunal considering thesubmissions of the parties and on close scrutiny of the material available on record held that the driver of the tractor was negligent and due to his: negligence the deceased Shailendra Kumar Verma died and awarded Rs.1,82,036/- to the claimants as total compensation. The Tribunal, while exonerating the insurance cbmpany from its liability, directed the appellants to pay the compensation amount along with interest at 6% per annum from the date offiling of claim petition till its realization. It is this order, which isunder challenge by the appellants. 5. Learned counsel for the appellants vehemently argued that the Tribunal ought to have fastened the liability to pay compensation on the insurance company since on the date of accident; the said tractor was insured with respondent No.^.-'lt-was further ^rgued that the said tractor was beingused for agricultural purpose whereas the learned Tribunal has erred in recording finding that the said tractor was being used | for commercial purpose. On these grounds, learned counsel urged that;the impugned order may be set aside while fastening the liability onithe insurance company. 6. On the other hand, learned counsel for the respondents argyed in support ofthe impugned order. .'•».• 2- 7. Having heard learned counsel for the appellants, 1 have perused the evidence available on record. It has come in the evidence that the deceased was found to have been sitting on the mudguard of the said tractor. It has also come in the evidence that sitting capacity of tractor is only for one i.e. driver. Under Section 2 (44) of the Act, a tractor has been defined as under: "Sec. 2(44): "tractor" means a motor vehicle which is not itself constructed fo carry any joad (other than equipment used for the purpose of propulsion); but excludes a road- rolter" This definition clearly shows that besides the driver carrying of any passenger on a tractor is prohibited under the Act. 8. Regulation 28 of the Rules of the Road Regulations, 1989, formulated under the Motor Vehicles Act, 1998 is as under: "28. Driving of tractors and goods vehicles.—Adriver when driving a tractpr shall not carry Or allow any person to be ., carried on tractor. A driver of goods carriage sfiall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward." 9. In Royal Sundaram Alliance Insurance Company Limited vs. Eshwarand others, Miscellaneous Appeal (C) No. 1372 of 2007, decided ori~9th'July, 2008;itwastield'asunderbythis"Court: "(6) It is not in dispute that the insurer is not required statutorily under Section 147(1) of the Act to cover the risk of a person travelling on the engine of the tractor besides the driver of the tractor. In United India Insurance Company Limitedvs. Smt. Rambai and others, Miscellaneous'Appeal No.789 of 2006, decided on 07.07.2008, this Court tias hetd that the deceased having traveled on the tractor could also not be termed as a third party so asto fasten statutory liability on the insurance company. By carrying the deceased on engine of the tractor a fundamental breach of the policy of insurance is established and, therefore, liability for payment of compensation could not be fastened on the insurance company. \r\ National Insurance Co.Ltd.MS. Bramaranbike and others, 2006 ACJ 671, the High Court bf \ ;.Karnataka: has, .in,,similai:.,situatiQn-held that the liability cannot be fastened on the insurance company in such a case. In New India Assurance Co. Ltd. vs. Diwakar ahd others, 2006 (2) TAC 937 (Bom.), the High Court of Bombay has also held that in a ease of death of a child aged 11 years travelling on the mudguard of the tractor the insurer not being statutorily required to insure passengers in a goods vehicle was not liable to pay compensation. 'ln New •MWft^ ,AI,l,;:"l;:ii:, '^ sf ffi : j':1' i I 'te.A j 1 ;l'T~tJ '%l..j:'a^y 2^ IndiaAssurance Co. Ltd. vs. Vedwati and others, Appeal (Civil) No. 860/2007 (arising out of SLP©No. 8317/2002 No.8802/2002), decided by the Supreme Couri: of India on 20.02.2007, it was held that carrying of passengers on a tractor is not contemplated by the Act. In other words, the legislative intent seems to be to prohibit carrying of any passenger on the tractor. The inevitable conclusion therefore, is that since the provisions 6f the Act do not enjoiri any statutory liability on the owner of the vehicle to get the tractor insured for any passenger travelling on the engine of the tractor, the insurer would not be liable to indemnify the owner. In the present case, in view of the testimony of Anjl Kumar Sahu, applicants' witness No.2, who was also travelling on the tractor with the deceased, it is established beyonddoubt that at the time of the accident the deceased Lilesh Kumar Yadavwas carelessly sitting on the engine of the tractor and died as a result offall therefrom.' Liabilityto pay compensation, therefore, squarely rests with respondent No.S/owner ofthe tractor." 10. In view of the above decision of this Court,iit is held that the Tribunal has rightly fastened liability to pay compensation on the appellants and has rightly exonerated the insurance company from its liability to pay compensation. 11. In the result, the appeal is dismissed. The impugned award dated 4.2.2005 passed by the Tribunal is impeccable. The liability to pay compensation and interest awarded by the Tribunal rests with the appellants/owner. No order as to cost! Sd/- R.L. Jhanwar Judge •^