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2015 DIGILAW 125 (UTT)

NANDA DEVI v. MEHBOOB

2015-03-09

SERVESH KUMAR GUPTA

body2015
JUDGMENT : Hon’ble Servesh Kumar Gupta, J. 1. Since both these appeals have arisen out of the same judgment, hence the same are being adjudicated by this common verdict. 2. Pratap Singh Airee (deceased), borne on bicycle, was dashed from behind by tractor no. UA08H-4837. The tractor was attached with the trailer loaded with the bricks. So, the engine of the tractor being less in the width crossed the bicycle ridden Mr. Airee, while the trailer, being so used and having quite larger width than the engine of the tractor, hit the victim. The deceased lost his life in that accident on 28.12.2009 at 5.30 AM. The incident was witnessed by Nar Singh, who has been examined as PW2 and he has proved the occurrence. Even the case of rash and negligent driving was registered against the driver Mahboob under the appropriate sections of the Indian Penal Code. He has admitted such registration of the case against him with the further admission that pursuant to registration of the said case, he was enlarged on bail by the Court of Magistrate. 3. The aforementioned tractor was insured w.e.f. 12.3.2009 to 11.3.2010, which covers the date and time of accident. The insurance cover note explicitly shows that no trailer was got insured along with such tractor. Even the trailer does not bear any registration number. So, it has been argued on behalf of the insurance company that the tractor was a vehicle which was insured only while doing the agricultural work, and carrying of bricks in no way can be attributed to be any such work, wherefor the tractor was meant. 4. The above view is fortified by the judgment of Hon’ble Apex Court rendered in the case of Oriental Insurance Company Ltd. v. Brij Mohan & Others, 2007 (3) T.A.C. 20 (S.C.). So, this Court does agree with the submissions made on behalf of the insurance company for all the more reason that even the trailer attached with the tractor was not got registered by its owner in accordance with the provisions of the Motor Vehicles Act. So, the liability cannot be fastened with the insurance company, rather it shall be fastened with the owner of the tractor who violated all norms and provisions of the law by using the tractor for carrying the bricks in this trailer. So, the liability cannot be fastened with the insurance company, rather it shall be fastened with the owner of the tractor who violated all norms and provisions of the law by using the tractor for carrying the bricks in this trailer. The learned Tribunal has altogether failed to discuss this aspect in the impugned judgment. 5. The argument made on behalf of the tractor’s owner that no such accident occurred is belied by the evidence of the vehicle’s driver himself, who has been examined in the trial court as DW1. 6. Consequently, the award and decree as against the appellant insurance company is hereby set aside, and the liability is fastened with Rajkumr, the owner of the tractor. 7. Any amount lying deposited by the insurance company shall be returned by the Tribunal along with the interest earned on such deposit. The compulsory statutory amount deposited in the High Court shall be remitted to the Tribunal concerned along with the interest accrued on it. In turn, the same shall be returned by the Tribunal to the insurance company. 8. Fifty percent amount has already been released in favour of the claimants. The insurance company will be at liberty to recover the same from the owner of the tractor. 9. The cross-appeal has been filed for the enhancement of the awarded compensation, and it has been argued that the Tribunal would have taken into consideration the monthly pension of Rs. 8983/-, which was being received by the deceased. 10. The above contention is totally baseless for the reason that after the commutation of the pension, the deceased was receiving only Rs. 7960/- per month and such amount is being consistently credited in his pension account even after his death, as has been proved by the concerned Bank Manager. In these facts and circumstances, the amount of compensation has rightly been calculated by the Tribunal. 11. In view of what has been discussed above, the A.O. No. 108/2011, preferred by the insurance company, is hereby allowed and A.O. No. 469/2010, preferred by the claimants, is hereby dismissed. 12. Let the lower court record be sent back.