Judgment: MACMA Nos.170 and 184 of 2009 arise out of a common judgment dated 15-02-2008 in MVOP Nos.201 and 209 of 2003 respectively passed by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kadapa (for short “the Tribunal”). 2) The factual matrix of the case is thus: a) The claimants in those two MVOPs were injured when a tractor-cum-trailer in which they and some others were travelling from Ahobilam to Bukkayapatnam village in Kadapa district was overturned near Harinagaram at about 3:00pm on 02-03-2002 due to rash and negligent driving of the driver. Both the claimants claimed to have suffered fracture injuries and also disability and incurred expenditure for treatment. Hence they filed the aforesaid MVOPs against the owner and insurer of the tractor-cum-trailer who are respondents 1 and 2 before the Tribunal. The owner took the plea that he lent his tractor-cum-trailer to his relative one Gudugu Marriraju for carrying relatives and villagers to Ahobilam to attend tonsuring function of his son and thus he lent the vehicle for social purpose and as he insured the tractor, the second respondent – Insurance Company shall indemnify his liability. b) The 2nd respondent—Insurance Company disowned its liability mainly on two grounds. Firstly, on the ground that the trailer in which the claimants and others travelled was not insured by the first respondent with the Insurance Company and so no liability can be fastened to the Insurance Company. The second ground pleaded by the Insurance Company was that permit given to the tractor-cumtrailer is for agricultural purpose but the first respondent used the vehicle for social purpose i.e. for transporting the villagers to attend social function. The policy was also issued for using the vehicle for agricultural purpose but the vehicle was used for different purpose. Since the vehicle was used in contravention of permit and policy, no liability can be attached to the Insurance Company. c) The Tribunal conducted common trial and recorded evidence in M.V.O.P.No.201 of 2003. On behalf of the claimants, P.Ws.1 to 3 were examined and Exs.A1 to A9 were marked. On behalf of the second respondent/Insurance Company, R.W.1 was examined. Since the vehicle was used in contravention of permit and policy, no liability can be attached to the Insurance Company. c) The Tribunal conducted common trial and recorded evidence in M.V.O.P.No.201 of 2003. On behalf of the claimants, P.Ws.1 to 3 were examined and Exs.A1 to A9 were marked. On behalf of the second respondent/Insurance Company, R.W.1 was examined. d) The common judgment of the Tribunal would show that basing on the evidence of P.Ws.1 and 2, Exs.A1 – FIR and Ex.A3 – charge sheet, the Tribunal held that accident was occurred due to rash and negligent driving of the driver of R.1.sheet, the Tribunal held that accident was occurred due to rash and negligent driving of the driver of R.1. e) Coming to the pleas taken by the Insurance Company, with regard to its first objection that the trailer was not independently insured, the Tribunal having relied upon the decision reported in the case of Gunti Devaiah vs. Vaka Peddi Reddy ( 2004 ACJ 1881 ) held that since the trailer cannot move without tractor it does not require separate policy and Insurance Company cannot avoid liability for want of its insurance. The second objection of the Insurance Company that the tractor was meant for agricultural purpose and it was used for a different purpose is concerned, the Tribunal held that since the policy was in force, the Insurance Company has to satisfy the claim and recover the compensation amount from R.1 for violation of the policy. It also held that the alleged violation cannot affect the claim of third party. With these observations, the Tribunal granted compensation of Rs.29,000/- to the claimant in MVOP No.201 of 2003 and Rs.31,000/- to the claimant in MVOP No.209 of 2003 and directed the 2nd respondent/Insurance Company to pay the said compensation amount with proportionate costs and interest at the rate of 7.5% per annum and recover the same from R.1 (owner of the tractor) 3) Hence, the Insurance Company preferred the two MACMAs aggrieved by the common judgment. Since the two appeals arise out of single judgment, they are disposed of by this common judgment. 4) Heard arguments of Sri A.Veeraswamy, learned counsel for appellant/Insurance Company and Sri K.Rathangapani Reddy, learned counsel for claimants/R.1. Since the two appeals arise out of single judgment, they are disposed of by this common judgment. 4) Heard arguments of Sri A.Veeraswamy, learned counsel for appellant/Insurance Company and Sri K.Rathangapani Reddy, learned counsel for claimants/R.1. 5) Opposing the common judgment of the Tribunal, learned counsel for appellant vehemently argued that the Tribunal erroneously directed the Insurance Company to pay and recover the compensation from the owner though it has no liability at all. Learned counsel disowned the liability of the Insurance Company mainly on two grounds. a) Firstly, on the ground that the vehicle in question is a tractor-cum-trailer which was permitted to be used for agricultural purpose only. The policy for tractor was also issued for using the tractor for agricultural purpose. However, the owner (R.2) used the vehicle for social purpose i.e. for carrying the villagers to Ahobilam for attending tonsuring function of son of Gudugu Mariraju in contravention of terms of permit and policy. Thus, it is obvious that claimants and others travelled in the trailer as unauthorized passengers. Since the vehicle was used in contravention of permit and policy, the Insurance Company cannot be made liable to pay the compensation. In this regard, he relied upon the decision reported in United India Insurance Co. Ltd. vs. Balaswamy and others ( 2012 (1) ALT 273 ). b) He pleaded the second ground to the effect that only tractor was insured with the Insurance Company and trailer was not insured. Under law, the trailer is also required to be insured. Since that is not done, the Insurance Company cannot be fastened with liability. 6) Per contra, supporting the common judgment, learned counsel for claimants/R.1 argued that trailer does not require independent policy since it cannot move itself and it can only be attached to another motor vehicle for towing and dragging. Hence the Insurance Company cannot repudiate its liability on the ground that trailer was not independently insured. Regarding the usage of the vehicle, learned counsel submitted that claimants and others no doubt travelled in the trailer as passengers. However, they are the third parties so far as the offending vehicle is concerned and as the vehicle was insured by the owner with the appellant/Insurance Company, it has liability to pay compensation. Regarding the usage of the vehicle, learned counsel submitted that claimants and others no doubt travelled in the trailer as passengers. However, they are the third parties so far as the offending vehicle is concerned and as the vehicle was insured by the owner with the appellant/Insurance Company, it has liability to pay compensation. He alternatively submitted that even assuming that there was violation of terms of permit and policy in the course of use of the vehicle, still the Insurance Company can be directed to pay compensation and later recover from its owner, since policy was in force by the date of accident. He submitted that there is no need to interfere with the Tribunal’s decision. He relied upon the following decisions to show that the Hon’ble Apex Court directed the Insurance Company to pay compensation first and then recover the same from the owner of the concerned vehicle even it is found that there was violation of terms of policy. 1) Manager, National Insurance Company Ltd. Vs. Saju P.Paul (2013) 2 SCC 41 ) 2) Kusum Lata and others vs. Satbir and others ( (2011) 3 SCC 646 ) 7) In the light of above divergent arguments, the points that arise for determination in these appeals are: 1) Whether there was violation of terms of permit and policy in the use of tractor-cum-trailer? 2) Whether a trailer requires independent policy apart from the tractor to which it is attached? 3) Whether the common judgment passed by the Tribunal is factually and legally sustainable? 8) POINT No.1: Admittedly, the tractor-cum-trailer at the relevant point of time was used for carrying the villagers to attend a social function. To that extent there is no demur. According to Insurance Company, permit and policy were issued to use the tractor-cumtrailer only for agricultural purpose, since the vehicle was used for different purpose there was violation of terms of policy. A perusal of the common judgment of the Tribunal would show that in Para-8 of the judgment though the Tribunal noted the contention of the Insurance Company, it failed to give a proper finding in respect of the said contention. A perusal of the common judgment of the Tribunal would show that in Para-8 of the judgment though the Tribunal noted the contention of the Insurance Company, it failed to give a proper finding in respect of the said contention. The Tribunal simply mentioned that though it is the contention of the Insurance Company, still it can satisfy the claim and recover the same from the owner for violation of the policy and the alleged violation will not affect the claim of the third party. Thus, it is obvious that the Tribunal has not given a definite finding as to whether or not there was violation of terms of the policy. Hence it necessitated this appellate Court to give a finding on this point. b) It is needless to emphasize that the burden is on the Insurance Company to establish the alleged violation of terms of the policy, since it admitted the coverage of policy and took the plea of violation of the terms. The Insurance Company in order to discharge its liability has examined its Administrative Officer as R.W.1 who no doubt in his chief examination deposed that the tractor was insured for agricultural purpose. However, curiously R.W.1 did not produce the copy of the policy to prove the terms and conditions. If copy of the policy was got marked as exhibit on behalf of the Insurance Company, it would have enabled this Court to know whether the policy was issued only for agricultural purpose or for any other purpose. In the absence of written contract i.e. policy, this Court cannot place was issued only for agricultural purpose or for any other purpose. In the absence of written contract i.e. policy, this Court cannot place implicit reliance on the oral testimony of R.W.1. Added to it, R.W.1 in his cross-examination admitted that the agricultural purpose was not mentioned in the policy shown to him. From his admission it can be inferred that there was no definite clause in the terms of the policy restricting use of vehicle for agricultural purpose alone. Therefore, it must be held that the appellant/Insurance Company failed to establish the alleged violation of terms of the policy. Admittedly, policy was in force by the date of accident. As such the Insurance Company cannot repudiate its liability on the ground of violation of terms, which it failed to establish. This point is answered accordingly. Therefore, it must be held that the appellant/Insurance Company failed to establish the alleged violation of terms of the policy. Admittedly, policy was in force by the date of accident. As such the Insurance Company cannot repudiate its liability on the ground of violation of terms, which it failed to establish. This point is answered accordingly. 9) POINT No.2: a) Admittedly, in this case the tractor alone was insured with the appellant/Insurance Company and trailer was not insured. The claimants and others travelled in the trailer at the time of accident and got injured. In this context the contention of the Insurance Company is that since trailer is not insured separately it has no liability. The finding of the Tribunal is that a trailer cannot move independently unless it is attached to a tractor and so it does not require independent policy. It relied upon the Gunti Devaiah vs. Vaka Peddi Reddy(1 supra). b) In Gunti Devaiah vs. Vaka Peddi Reddy(1 supra) the point for consideration was whether trailer should be separately insured for the purpose of claiming compensation in respect of the accident caused by the driver of the tractor. In that context the learned single Judge of this High Court has observed that though Section 2(28) of the Motor Vehicles Act, 1988 (for short “the Act”) embraces trailer within the definition of ‘motor vehicle’ or ‘vehicle’, however a further distinction has to be carved out on the basis of the specific definition given to the word ‘trailer’. c) Learned Judge held that though term ‘trailer’ was also included in the definition of ‘motor vehicle’ or ‘vehicle’, still separate definition was assigned to the trailer. Basing on the said definition a distinction need to be carved out between ‘motor vehicle’ and ‘vehicle’. Since a trailer has no independent propulsion and cannot move on its own and can be moved by another prime mover say tractor, therefore, a trailer can be regarded as only a vehicle but not a motor vehicle. Since as per Section 146 of the Act only motor vehicles need insurance policy, the trailer which is a vehicle does not require it. d) It may be noted that in a subsequent decision reported in Oriental Insurance Co. Ltd. Vs. Laxmanna (died) by L.Rs. Since as per Section 146 of the Act only motor vehicles need insurance policy, the trailer which is a vehicle does not require it. d) It may be noted that in a subsequent decision reported in Oriental Insurance Co. Ltd. Vs. Laxmanna (died) by L.Rs. ( 2004 (5) ALT 398 = 2005 ACJ 1532 )a learned single Judge of this High Court differed with the view expressed in the above decision. The learned Judge took the view that since a ‘trailer’ is included in the definition of ‘motor vehicle’ or ‘vehicle’ under Section 2(28) of the Act, it is obvious that a trailer is a motor vehicle. When, once it is considered to be a motor vehicle, notwithstanding the fact that by itself, it is not a mechanically propelled vehicle, it becomes a motor vehicle for all practical purposes and under Section 146 of the Act, the trailer requires to be insured, regardless of the fact that a trailer is attached to the tractor and it is not a self-propelled vehicle. The learned Judge was of the view that earlier judgment was per in curium since rendered against a specific provision of the Act. e) Thus, we have two diametrically opposite decisions rendered by the single Judges on the same point. The parties have not placed before me either the decision of the Honourable Apex Court or the Division Bench of this Court. My view is concerned, I agree with the view expressed in the earlier decision rendered in the case of Gunti Devaiah vs. Vaka Peddi Reddy(1 supra). 10) My reasons are thus: (i) Under Section 146 of the Act a motor vehicle used in a public place needs insurance policy. My view is concerned, I agree with the view expressed in the earlier decision rendered in the case of Gunti Devaiah vs. Vaka Peddi Reddy(1 supra). 10) My reasons are thus: (i) Under Section 146 of the Act a motor vehicle used in a public place needs insurance policy. Under Section 2(28) of the Act definition of ‘motor vehicle’ or ‘vehicle’ is given which means, “any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chasis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty five cubic centimetres.” Thus, in the definition, “a chasis to which a body has not been attached” and ‘a trailer’ are included. The inclusion of chasis (frame) and trailer in the definition appears to be for the reason that they cannot be moved independently and they need to be towed by another motor vehicle which is obvious from the definition of trailer given under Section 2(46) of the Act. The said definition reads thus: “Trailer means any vehicle, other than a semi-trailer and side-car, drawn or intended to be drawn by a motor vehicle.” Therefore, the object behind inclusion of chasis and trailer in the definition of ‘motor vehicle’ or ‘vehicle’ is not because they themselves are motor vehicles but they need to be drawn by a motor vehicle. When a chasis or trailer is attached to its prime mover they assume the character of single motor vehicle for the purpose of definition of ‘motor vehicle’. In such an event it cannot be said that a trailer needs independent policy apart from its prime mover i.e, tractor because a trailer cannot be considered as an independent motor vehicle, when once it is attached to its prime mover. ii) As already stated supra, the object in including a chasis and a trailer in the definition of motor vehicle is to regard them as part of their prime movers, but not independent motor vehicles. ii) As already stated supra, the object in including a chasis and a trailer in the definition of motor vehicle is to regard them as part of their prime movers, but not independent motor vehicles. In my considered view, if a chasis and trailer are treated as part of their prime movers and thereby as motor vehicle the object of the provisions of the Act will be served. On the other hand, if a chasis and a trailer are treated as independent motor vehicles, the object of the provisions will be defeated and give disastrous results. For example, if the analogy that a trailer by itself is a motor vehicle as propounded in subsequent decision is applied to a chasis also, then it must be held that a chasis is also a motor vehicle by itself and it needs independent policy apart from its prime mover i.e., lorry or other contrivance. Hence, I am of the view that the earlier decision reported in Gunti Devaiah vs. Vaka Peddi Reddy(1 supra) subserves the object of the beneficial legislation rather than the subsequent decision reported in Oriental Insurance Co. Ltd. Vs.serves the object of the beneficial legislation rather than the subsequent decision reported in Oriental Insurance Co. Ltd. Vs. Laxmanna (died) per L.Rs(5 supra). However, in view of the fact that those two decisions are rendered by the learned single Judges and no decision of Honourable Apex Court or Division Bench of this Court are placed before me, I think it is appropriate to seek an authoritative pronouncement by a Division Bench on the following point: “Whether a trailer requires independent policy apart from the tractor to which it is attached?” 11) Accordingly, Registry is directed to place the file before the Honourable the Chief Justice for referring the matter to a Division Bench for rendering an authoritative pronouncement on the point in issue.