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2013 DIGILAW 322 (HP)

NATIONAL INSURANCE CO. LTD. v. HUKAM CHAND

2013-04-18

DEV DARSHAN SUD

body2013
JUDGEMENT DEV DARSHAND SUD, J. 1. THIS appeal lias been preferred against the judgment of learned Motor Accident Claims Tribunal, Mandi, H.P. awarding a sum of Rs. 1,10,697/- to the claimant Hukam Chand with interest at the rate of 9% per annum from the date of institution of the petition till its deposit. 2. WHAT is not disputed before me is that the accident occurred on 29.12.2004 and the petitioner was sitting on the tractor returning from Slapper after delivering agricultural articles/implements. The pleading was that it was being driven in a rash and negligent manner by the 1st respondent Tulender Kumar (in the Tribunal) who was owner and driver of the tractor. On the settled issues, the learned Tribunal rejected the contention of the Insurance Company that it was not liable to pay the awarded amount/compensation as the vehicle in question was a tractor and the Insurance Policy did not cover any passenger etc. traveling thereon. The liability was apportioned on the Insurance Company which is now in appeal challenging the award on a number of grounds primarily that since it is a tractor which is involved in the accident, the liability, if any, is that of the owner. Learned counsel appearing for the appellant places reliance on the judgment of the Supreme Court in Oriental Insurance Company v. Brij Mohan and others, 2007 (4) SCJ 459 = 2007 (57) AIC 189 (SC) = (2007) 7 SCC 56 = 2008 (1) ALT 7.1 (DN SC), holding therein that the liability, if any, would be that of the owner and it is not a vehicle that can be used for commercial purpose. Learned counsel also relies upon the decision of this Court in FAO No. 275 of 2006, titled: National Insurance Company Ltd. v. Smt. Reena Devi and Others, decided on 3rd April, 2012, holding: - 3. THE only point of law urged before me is as to whether the liability can be apportioned on respondent No.2 before the learned Tribunal (Insurance Company), appellant herein. This Court in New India Assurance Company Ltd. v. Sudesh Kumari and others, (2007) ACC 386 holds: - 4. BRIEF facts of the case are that deceased Parminder Kumar is alleged to have died as a result of accident of tractor No. HR -02A -7259. According to the claimants, Parminder Kumar was traveling on the tractor along with his goods and Rs. BRIEF facts of the case are that deceased Parminder Kumar is alleged to have died as a result of accident of tractor No. HR -02A -7259. According to the claimants, Parminder Kumar was traveling on the tractor along with his goods and Rs. 50 as fare was agreed to be paid to the driver of the tractor. The claim petition was filed by the parents of Parminder Kumar and was instituted in the Court of Motor Accident Claims Tribunal, Sirmour at Nahan on 6.11.1998. Mrs. Hema Devi, widow of deceased was shown as proforma respondent, but vide order dated 29.7.1999 on an application for transposition having been moved by Mrs. Hema Devi, she was alleged to be arrayed as petitioner No.3. Admittedly, the vehicle in question insured with the Insurance Company was a tractor. The sitting capacity of the vehicle was only one. It was meant to be used only for agricultural purpose and not for carrying of passengers. 5. A tractor is not a goods vehicle. Section 2(44) defines tractor as under: - "Tractor means a motor vehicle which is not itself constructed to carry and load (other than equipment used for the purpose of propulsion); it excludes a road-roller." 6. IT is, thus, clear that a tractor is not meant to carry any passenger or to carry any load. A trailer has been defined in Section 2(46) as under: Trailer means any vehicle, other than a semitrailer and a side car, drawn or intended to be drawn by a motor vehicle." When a trailer is attached to the tractor, the trailer can be used for carriage of goods. However, the trailer cannot be used for carriage of passengers. The question whether the tractor becomes a goods vehicle when a trailer has been attached to it has been left open by the Apex Court in National Insurance Company v. Chinnamma, 2005 (1) ALT 59 (SC) = 2005 (1) An. W.R. 11(SC) = III (2004) ACC 1(SC) = (2004) SLT 500 = 2004(8) SCC 697 . The Apex Court considered these questions and held as follows: "16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The Apex Court considered these questions and held as follows: "16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to the market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even it be assumed that the trailer would answer the description of goods carriage as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decision of this Court in Asha Rani and other decision following the same, as the accident had taken placed on 24.11.1991 i.e. much prior to coming into force of the 1994 amendment. 7. IN the present case admittedly, the vehicle in question was a tractor and the insurance policy has been proved on record as Ex. RC. As per the insurance policy, the risk cover is only for the driver and not the passenger and there is no liability on the Insurance Company with regard to pay compensation to any passenger sitting on the said tractor. Therefore, the Insurance Company cannot be held liable. (page 387 -389) 8. THERE is no dispute with respect to this proposition. The established facts are that the accident occurred because of the use of the tractor. In this eventuality, this appeal is allowed. I direct that the liability will be that of the 2nd respondent herein, Shri Tulender Kumar. Therefore, the Insurance Company cannot be held liable. (page 387 -389) 8. THERE is no dispute with respect to this proposition. The established facts are that the accident occurred because of the use of the tractor. In this eventuality, this appeal is allowed. I direct that the liability will be that of the 2nd respondent herein, Shri Tulender Kumar. Taking into consideration the decision in Smt. Reena Devi's case (supra) as also in Manager, National Insurance Company Limited v. Saju P. Paul and another, 2013 (122) AIC 104 (SC) = (2013) 2 SCC 41 , I direct that the amount shall first be satisfied by the Insurance Company. The appellant Insurance Company will recover this amount from 2nd respondent (Tulender Kumar) in this appeal in execution petition. Appeal is disposed of. No order as to costs.