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2008 DIGILAW 172 (CHH)

Royal Sundaram Alliance v. Eshwar

2008-07-09

D.R.DESHMUKH

body2008
ORDER This is an appeal by the insurer. (2) The Additional Motor Accidents Claims Tribunal, Bemetara, District Durg (henceforth `the tribunal') has in Claim Case No.58/06 passed an award dated 31-08-2007, whereby compensation of Rs.2,39,900/- was awarded in a case of death of one Lilesh Kumar Yadav, who was travelling on the engine of the ill-fated new unregistered tractor (henceforth `the tractor') to which a trolley was attached. The tribunal held that since the tractor was insured for agricultural purpose only and was being used for such purpose, breach of the conditions of the policy of insurance was not proved. (3) The short question that arises for determination in this appeal is whether in a case where the deceased was travelling on the engine of the tractor at the time of the accident and died as a result of a fall therefrom, liability to pay compensation could be fastened on the insurance company? (4) Under Section 2(44) of the Motor Vehicles Act, 1988 (henceforth `the Act') a tractor has been defined 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;" This definition clearly shows that besides the driver carrying of any passenger on a tractor is prohibited under the Act. (5) Regulation 28 of the Rules of the Road Regulations, 1989, formulated under the Motor Vehicles Act, 1988, is as under: "28. Driving of tractors and goods vehicles.- A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall 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." (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 Limited vs. Smt. Rambai and others, Miscellaneous Appeal No.789 of 2006, decided on 07-07-2008, this Court has held that 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. In United India Insurance Company Limited vs. Smt. Rambai and others, Miscellaneous Appeal No.789 of 2006, decided on 07-07-2008, this Court has held that 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 the deceased on the 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. In National Insurance Co. Ltd. vs. Bramaranbike and others, 2006 ACJ 671, the High Court of Karnataka has in similar situation held that the liability cannot be fastened on the insurance company in such a case. In New India Assurance Co. Ltd. vs. Diwakar and others, 2006 (2) TAC 937 (Bom.), the High Court of Bombay has also held that in a case 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. In New India Assurance Co. Ltd. vs. Vedwati and others, Appeal (Civil) No.860/2007 (arising out of SLP(C) No.8317/2002) with Civil Appeal No.861/2007 (arising out of SLP(C) No.8802/2002), decided by the Supreme Court 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 of the Act do not enjoin 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 Anil Kumar Sahu, applicants' witness No.2, who was also travelling on the tractor with the deceased, it is established beyond doubt that at the time of the accident the deceased Lilesh Kumar Yadav was carelessly sitting on the engine of the tractor and died as a result of fall therefrom. Liability to pay compensation, therefore, squarely rests with respondent No.3/owner of the tractor. (7) In the result, the appeal is allowed. Liability to pay compensation, therefore, squarely rests with respondent No.3/owner of the tractor. (7) In the result, the appeal is allowed. The impugned award dated 31-08-2007 passed by the tribunal is partly modified by exonerating the appellant/insurer from the liability to pay compensation. The appellant/insurer may initiate proceedings for recovery of compensation, if any paid by it, from the owner.