Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 2123 (ALL)

NATIONAL INSURANCE CO. LTD. v. RAM CHARITRA

2013-08-19

RITU RAJ AWASTHI

body2013
JUDGMENT : RITU RAJ AWASTHI, J. 1. Heard learned Counsel for the appellant as well as learned Counsel for respondent Nos. 1 and 2. No one has put in appearance for respondent Nos. 3 and 4 in spite of sufficient service. 2. This First Appeal from Order has been filed u/s 173 of the Motor Vehicles Act, 1998 against the judgment and award dated 28.1.2010 passed in M.A.C.T. Claim Case No. 166 of 2009 as well as the order dated 6.11.2009 rejecting the application u/s 170 of Motor Vehicles Act whereby the compensation to the tune of Rs. 1,54,500 has been awarded in favour of the claimants against the present appellant, along with 7% simple interest from the date of presentation of the claim petition. 3. Learned Counsel for the claimants submits that at the time of occurrence of the accident i.e. on 5.3.2009 the tractor was covered under the Insurance Policy for agricultural purpose under the Kisan Package Policy. 4. From the evidence available before the Tribunal, it has been established that at the time of occurrence of accident the tractor bearing registration No. UP-30 C-2733 was fitted with trolley carrying certain persons i.e. 4 persons on the said tractor and 10-12 persons in the trolley. The accident had taken place on road in which the deceased chhotu @ Babu aged 7 years son of Sri Ram Charit had died. 5. Submission is that the tractor was not being used for agricultural purpose and, as such, at the time of occurrence of accident it was being plied against the terms and conditions of the Insurance Policy. Therefore, the present appellant cannot be liable to pay the compensation as directed by the Tribunal. 6. It is submitted that the appellant had specifically pleaded in its written statement before the Tribunal that the tractor at the time of occurrence of accident was not being used for agricultural purpose, however, learned Tribunal merely relying on the statement of certain witnesses has held that the tractor at the time of accident was being used for agricultural purpose. It is also submitted that there was no evidence before the learned Tribunal to come to such a conclusion. 7. In support of his submission, learned Counsel for appellant relied on the judgments of the Apex Court in the case of M.V. Jayadevappa and Another Vs. It is also submitted that there was no evidence before the learned Tribunal to come to such a conclusion. 7. In support of his submission, learned Counsel for appellant relied on the judgments of the Apex Court in the case of M.V. Jayadevappa and Another Vs. Oriental Fire and General Insurance Company Ltd. and Others, (2004) 13 SCC 43 , as well as on the judgment in the case of Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others, (2007) 7 SCC 56 . 8. Learned Counsel for the respondent-claimants, on the other hand, submitted that the burden to prove that the tractor was being used for the purpose other than agricultural purpose was on the appellant-Insurance Company. It has failed to establish before the Tribunal that the tractor at the time of accident was being used for some other purpose than the agriculture purpose, as such the Tribunal was justified in fastening the liability on the Insurance Company to pay the compensation to the claimants. 9. I have considered the submissions made by the parties' Counsel and gone through the records. 10. There is no dispute to the fact that the accident dated 5.3.2009 had occurred with the tractor having registration No. UP 30 C-2733 in which the deceased Chhotu @ Babu had died. 11. It is also not disputed by the claimant-respondents that at the time of occurrence of accident the tractor was having a trolley, attached and certain persons were riding on tractor as well as on the trolley. 12. The learned Tribunal while deciding the aforesaid claim had framed certain issues including the issue No. 5, which reads as under: (Hindi matter omitted) 13. While deciding the said issue the learned Tribunal has relied on the statement of owner of tractor who in his statement had denied that he was using the tractor for commercial purpose, i.e. other than the agricultural purpose. However, he had admitted in his statement that at the time of occurrence of accident the tractor was attached with trolley. He had stated that the tractor was plied as per the terms of Insurance Policy at the time of accident. 14. The learned Tribunal held that the appellant-Insurance Company has failed to produce any evidence that at the time of accident the tractor was being used for the purpose other than the agricultural purpose. He had stated that the tractor was plied as per the terms of Insurance Policy at the time of accident. 14. The learned Tribunal held that the appellant-Insurance Company has failed to produce any evidence that at the time of accident the tractor was being used for the purpose other than the agricultural purpose. Relying on the statement of owner of the vehicle the learned Tribunal has held that at the time of accident the tractor was being used for agricultural purpose. 15. It is relevant to note that in case the tractor was being driven against the terms and conditions of the Insurance policy and had met with an accident, the insurer cannot be said to be liable to pay the entire compensation. There was no evidence on record before the Tribunal to come to the conclusion that the tractor was driven as per the terms of insurance policy but for the vague statement of owner of the tractor that "the vehicle at the time of accident was being used for agricultural purpose". 16. It was necessary to prove that the vehicle was being driven as per the terms of the insurance policy in order to fasten the liability on the Insurance Company. 17. The fact that the tractor at the time of occurrence of accident was attached with a trolley, having certain persons sitting on it as well as in the trolley cannot be, with certainty, said to be conclusively driven for agricultural purpose, more so after considering the fact that the accident had taken place on the road. 18. The learned Tribunal as such has erred in fastening the entire liability to pay compensation on the appellant-Insurance Company. 19. However, considering the peculiar facts and circumstances of the case, I do not feel it necessary to remand the matter back to the Tribunal to decide the aforesaid issue again. It would be expedient in the interest of justice that the amount of compensation determined by the Tribunal is paid to the claimants by the appellant, however, it shall be at liberty to recover the same from the owner of the vehicle in the same manner as was directed by the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Shri Nanjappan and Others, (2004) 13 SCC 224 . 20. Ltd. Vs. Shri Nanjappan and Others, (2004) 13 SCC 224 . 20. The appellant shall deposit the total amount deducting the amount already deposited within a period of six weeks before the Motor Accident Claims Tribunal. The amount so deposited shall be released in favour of the claimants thereafter. The statutory amount deposited at the time of filing of the appeal shall be remitted back to the Tribunal. With these observations, the appeal is disposed of.