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2011 DIGILAW 1096 (KAR)

New India Assurance Co. Ltd. v. N. Ballegowda

2011-11-15

SUBHASH B.ADI

body2011
ORDER SUBHASH B. ADI, J.—This review petition seeking the review of the judgment in MFA No. 837/2007 dated 17.12.2009 is filed by the insurer. 2. This Court had disposed of the appeal inter alia holding that the grain-trashing machine is insured with the appellant-insurance company and had fixed the liability on the insurer. Alter the disposal, the review petition is filed inter alia contending that the machine, which is involved in the accident is not a motor vehicle. Policy issued by the insurance company is only the fire policy. 3. Learned counsel for the insurer submitted that it was a ragitrashing machine and it is not a motor vehicle within the meaning of Section 2 Clause 28 of the Motor Vehicles Act. He relied on the judgment of the Division Bench in MFA No. 2033/2001 dated 27.8.2007 and submitted that the Division Bench even in case of an. earth mover, has held that it. is not a motor vehicle and it is not covered under the provisions of Motor Vehicles Act, Whereas, learned counsel for the claimant, submitted that, even in such cases, the insurer is liable and relied on the judgment of the Division. Bench of this Court in MFA No. 2566/1995 dated 19.11.2002 and submitted that the Division Bench of this Court in case of harvesting machine, has held that it is a motor vehicle. He also relied on the judgment in MFA No. 9106/2008 dated 30.7.2010 and submitted that this Court has held, that hydraulic excavator, crop harvester, borewell drilling vehicle, bulldozers etc. are all motor vehicles. 4. Learned counsel for the claimant submitted that the insurer has not disputed the policy before the Commissioner for Workmen’s Compensation and no evidence is led by the insurer. As such, the Insurer cannot raise such contention for the first time before this Court. He also submitted that the matter requires re-consideration by the Commissioner for Workmen’s Compensation as the evidence is not led by the insurer. 5. Considering the submissions made by both the counsel and the decision of this Court, 1 am of the opinion that the order in MFA No. 837/2007 dated 17.12.2009 requires to be re-called. 6. Accordingly, review petition is partly allowed. Judgment and award dated 17.12.2009 in MFA No. 837/2007 is re-called. 7. Further, MFA No. 837/2007 is also partly allowed. 5. Considering the submissions made by both the counsel and the decision of this Court, 1 am of the opinion that the order in MFA No. 837/2007 dated 17.12.2009 requires to be re-called. 6. Accordingly, review petition is partly allowed. Judgment and award dated 17.12.2009 in MFA No. 837/2007 is re-called. 7. Further, MFA No. 837/2007 is also partly allowed. Judgment in WC No. 31/2003 dated 30.10.2006 passed by the Commissioner for Workmen’s Compensation, Mandya is hereby set aside. Matter is remitted to the Commissioner for Workmen’s Compensation with liberty to both the parties to lead additional evidence and on considering the additional evidence led by the parties and law on this point, the commissioner is directed to dispose of the matter as early as possible not later than six months from the date of receipt of the copy of this order. Amount in deposit be refunded to the petitioner-insurer.