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2016 DIGILAW 256 (UTT)

New India Assurance Company Ltd. v. Mohd Hashim

2016-06-17

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. 1. Since both these appeals have arisen out of the same judgment and accident, hence are being taken up together for adjudication. 2. At the outset, it can be mentioned that even in the revised call, none turned up on behalf of the appellant Mr. Surendra, who is the owner of the offending tractor-trolley and has preferred AO No.159 of 2011 and is also impleaded as respondent no.6 in connected AO No.125 of 2011. None turned up on behalf of the claimants also, while learned counsel of the insurance company remained present all throughout and, hence, he has been heard. 3. Vide impugned judgment, the compensation of Rs.2,10,000/- was granted to the claimants against the insurance company with right to recover the same from the vehicle’s owner Mr. Surendra. After filing the appeal by Mr. Surendra, the order conferring recoverable rights were stayed by a co-ordinate Bench of this Court on 21.06.2011. The insurance company was asked to deposit entire decretal amount, out of which, 50% has been released in favour of the claimants pursuant to the order of the Court dated 14.12.2011 passed in AO No.125 of 2011. 4. The accident occurred on 07.11.2009 when Mr. Shakeel, a youth of 22 years, was boarded in the trolley attached with the tractor (bearing no.UA-08-J-6447) met with an accident resulting in his death at the spot. The trailor (trolley), attached with the tractor, was loaded with small stones (Bazri). The tractor was being driven by Dilshad @ Uriya. Such tractor was being plied very rashly and negligently. The driver applied the brake suddenly, with the result Shakeel fell down and breathed his last on the spot. 5. Insurance of tractor has not been denied on the date of occurrence, but it has nowhere been brought on the record that the trailor (trolley) was insured neither it had any registration number, as required under Section 61 of the Motor Vehicles Act. 6. PW2 Mohd Ashraf (an eyewitness) has deposed that small stones (bajri) were loaded in the trolley, which was attached in such tractor and the vehicle was being driven very rashly and negligently by its driver Mr. Dilshad. 7. A Constitutional Bench of the Hon’ble Apex Court in the case of “Natwar Parikh & Co. Ltd. Vs. 6. PW2 Mohd Ashraf (an eyewitness) has deposed that small stones (bajri) were loaded in the trolley, which was attached in such tractor and the vehicle was being driven very rashly and negligently by its driver Mr. Dilshad. 7. A Constitutional Bench of the Hon’ble Apex Court in the case of “Natwar Parikh & Co. Ltd. Vs. State of Karnataka and others”, reported in 2006 ACJ Volume I Page 1, has held that when a tractor and trolley are combined, such combination would constitute a goods carriage under Section 2(14) and consequently a “transport vehicle” and more so, when such trolley was being used in transporting the goods from one place to another. 8. Further, Hon’ble Apex Court in the case of “Oriental Insurance Company Ltd. Vs. Brij Mohan and others”, reported in 2007 (3) TAC 20, has held that when insured trolley was attached to a tractor and the labourer engaged for digging earth was being carried on tractor trolley for manufacture of brick-kiln, then indisputably the tractor cannot be accepted to be used for agricultural work at the moment. Since injured was merely a passenger travelling on said tractor-trolley, his claim could not have been allowed against the insurance company but since he was a poor labourer and suffered grievous injuries and became disabled to a great extent, so the Hon’ble Apex Court, exercising the powers vested under Section 142 of Constitution of India, directed the insurance company to satisfy the award and realize the same from owner of tractor-trolley. 9. The appeal preferred by the insurance company is allowable on yet another point. The driving licence of Mr. Dilshad was not for the transport vehicle. So, on that score also, the liability is to be attributed on the owner of the vehicle because he engaged such a driver, who did not possess a valid driving licence for plying the transport vehicle as the tractor, since being attached with the trolley at the time of the accident, was having such status. 10. In view of what has been set forth above, the liability to pay the compensation shall be of the owner and the driver of the vehicle jointly and severally. Consequently, the appeal (AO No.125 of 2011) filed by the insurance company is allowed and the appeal (AO No.159 of 2011) preferred by Mr. Surendra, owner of the vehicle, is dismissed. 11. Consequently, the appeal (AO No.125 of 2011) filed by the insurance company is allowed and the appeal (AO No.159 of 2011) preferred by Mr. Surendra, owner of the vehicle, is dismissed. 11. The compulsory statutory amount, deposited by the insurance company as well as by Mr. Surendra, shall be remitted to the Tribunal concerned along with the interest, earned. Thereafter, the remaining 50% amount along with interest, which it has earned, and also the statutory compulsory deposit remitted by this Court in both the appeals shall be released by the Tribunal in favour of the insurance company. 12. The insurance company shall be entitled to recover the remaining amount from the owner and driver of the vehicle. 13. LCR be sent back.