JUDGMENT : The instant appeal has been preferred by the insured against the Award dated 01.06.2010 passed by the learned Motor Accident Claims Tribunal, Bilaspur, (for short “the Tribunal”), in M.A.C.No.51 of 2007, whereby appellant has been fastened with liability to pay the awarded amount of compensation along with interest to respondent No.1 herein (for short “the claimant”). 2. Claimant had filed a claim petition under Section 166 of the Motor Vehicles Act (for short, ‘the Act’) for grant of compensation against appellant (insured/owner), respondent No.2 (for short “driver”) and respondent No.3 (for short “insurer”) on the premise that the claimant had suffered injuries and permanent disablement as result of motor vehicle accident involving tractor bearing No. HP-69-0628. The case of the claimant was that on 02.10.2006, he was engaged as labourer by the owner and driver for loading and unloading the goods i.e. construction material in the trolley attached to the aforesaid tractor. It was further alleged that, while unloading the tractor at village Nand, Tehsil Nalagarh, District Solan, the tractor turned turtle due to rash and negligent driving of driver and resulted in causing injuries and permanent disablement to the claimant. 3. The owner and driver had submitted their joint reply. The rash and negligent driving on the part of driver was denied. It was submitted that at the time of accident the tractor was parked for unloading the mud. Claimant was unloading mud and due to his own negligence, he skidded and fell down and sustained injuries. It was further submitted that the vehicle/tractor was insured with the insurer and the liability, if any, was to be borne by the insurer. 4. The insurer contested the petition by raising preliminary objections, with respect to breach of terms and conditions of the insurance policy. Allegation of collusion between the claimants and the owner was also levelled. As regards violation of terms of policy, it was submitted that the owner did not have valid registration certificate as well as policy of insurance for the tractor in question. It was further submitted that the driver did not possess valid and effective driving licence. The claimant was also termed to be the unauthorized/gratuitous passenger. On merits, the averments made in the claim petition were denied in generality. 5. Learned tribunal had framed the following issues:- 1. It was further submitted that the driver did not possess valid and effective driving licence. The claimant was also termed to be the unauthorized/gratuitous passenger. On merits, the averments made in the claim petition were denied in generality. 5. Learned tribunal had framed the following issues:- 1. Whether the petitioner had sustained injuries on 2.10.2006, at village Nand, Tehsil Ram Shehar, Police Station and District Solan, H.P. falling within the jurisdiction of Police Station Ram Shehar, District Solan, H.P., due to rash and negligent driving of Tractor No. HP-69-0628 being driven by respondent No.2, as alleged? OPP. 2. If issue No.1 supra is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from whom? OPP 3. Whether the respondent No.2 was not having a valid and effective driving licence at the relevant time, as alleged? OPR-3. 4. Whether the petitioner was travelling in the offending tractor as gratuitous passenger at the relevant time? OPR-3. 5. Whether the offending tractor was being plied without relevant documents in contravention of provisions of Motor Vehicles Act? OPR-3 6. Relief. Issues No. 1, 2 and 4 were decided in affirmative, whereas issues No.3 and 5 were decided in negative. The claim petition was allowed in favour of the claimant. An Award of Rs. 3,94,000/- along with interest @7.5% per annum from the date of filing of petition till the date of deposit was passed. The liability to pay the awarded amount was fastened on the owner. Hence, the owner is in appeal. 6. I have heard Mr. Jagat Paul, Advocate, for the appellant/owner and Mr. B.M. Chauhan, Senior Advocate, for the insurer and have also gone through the entire record carefully. 7. The owner has assailed the impugned award on the ground that the liability to pay awarded amount has been wrongly fastened against him. As per him, the vehicle/tractor was duly insured with the insurer. The findings returned by the learned Tribunal to the effect that the claimant was not proved to be an employee of the owner at the time of accident have been assailed as perverse and against the material on record. 8. Learned Tribunal attributed the injuries suffered by claimant to rash and negligent driving of driver while driving tractor number HP-69-0628. Such findings were based by placing reliance on the statement of claimant and PW-3 Shri Lakshman Singh. 9. 8. Learned Tribunal attributed the injuries suffered by claimant to rash and negligent driving of driver while driving tractor number HP-69-0628. Such findings were based by placing reliance on the statement of claimant and PW-3 Shri Lakshman Singh. 9. The Tribunal held that there was nothing in the statements of claimant and his witness that the claimant was employee of the owner. Further, the Tribunal was also impressed with that part of the statement of claimant where he stated that he was not being paid salary by his brother. It further held that since no passenger was permissible on tractor, therefore, claimant was a gratuitous passenger and, on such grounds, absolved the insurer from indemnifying the insured/owner. 10. On consideration of entire material placed on record, the issue whether claimant was employee of owner or was gratuitous passenger will take back seat and the most material aspect would be to ascertain and find the mode and manner in which accident took place and thereafter the necessary legal implications thereof. 11. Referring to the pleadings, it was clearly spelt out in the claim petition that the accident had taken place when tractor trolley was being unloaded at village Nand. This fact was not denied by owner and driver. They only stated that it was not on account of rash and negligent driving of the driver, but was due to the negligence of the claimant himself. Insurer on its part had not made any specific averment in this respect. In evidence, claimant examined himself as his own witness (PW2). He specifically stated on oath that on 02.10.2006, when he was opening the bolt applied on the tractor trolley for the purpose of unloading the same, the driver rashly reversed the vehicle, as a result of which, the claimant along with the vehicle rolled down to the extent of about 20-25 feet. In cross-examination by the owner and driver, the mode and manner of accident described by the claimant was not seriously disputed. In cross-examination, it was suggested to him that he was not working as labourer on the tractor and was in fact driving the tractor and since he was not having driving licence he was being wrongly shown as labourer. 12. Similarly, the statement of PW-2 as to the manner of accident, was not disputed by the insurer while cross-examining this witness. 12. Similarly, the statement of PW-2 as to the manner of accident, was not disputed by the insurer while cross-examining this witness. Rather it was suggested to him that when the tractor was being unloaded it was parked on the road. 13. PW-3 Shri Laxmi Singh was also examined as an eye witness. He deposed that the driver of the tractor was reversing the tractor for unloading its trolley and the claimant was opening its bolt. The tractor rolled down from the road. Claimant was also pushed as a result thereof and he also rolled down along with the tractor. The cause of accident was attributed to the negligence of driver. Again, from the cross-examination of this witness nothing was elicited so as to discredit him regarding his version of accident. 14. None for the respondents entered the witness box. 15. From the aforesaid evidence, it was clearly established that the claimant had suffered injuries on his person when the tractor was in the process of unloading the trolley and the claimant was engaged for the purpose of unloading. It has been duly proved that the claimant was opening the bolt at the relevant time. The tractor trolley along with the claimant rolled down from the road was also established. How the claimant himself was negligent has not been proved on record. The claimant as PW-2 and Shri Laxmi Singh as PW-3 have stated that the driver was rash and negligent in his act. Even otherwise, the Tribunal has held the accident to have resulted due to rash and negligent driving of the driver and none has challenged such findings. In such circumstances, the fact proved was that the accident had taken place when the tractor was in the process of unloading its trolley and claimant was engaged in the opening of the bolt of the trolley to facilitate unloading. The insurer cannot avoid its liability in such circumstances. The claimant in the given circumstances was none but the third party and thus the insurer was liable to indemnify the insured. 16. Thus, since the accident had not taken place when the tractor was in transit with claimant on board, the plea of gratuitous passenger in respect of claimant is rendered meaningless and rather redundant. The claimant in the given circumstances was none but the third party and thus the insurer was liable to indemnify the insured. 16. Thus, since the accident had not taken place when the tractor was in transit with claimant on board, the plea of gratuitous passenger in respect of claimant is rendered meaningless and rather redundant. 17 Similarly whether claimant was employee of the owner could not be taken as determinative factor for absolving the insurer from its liability under the policy for the reasons that once the claimant qualified for compensation as third party the insurer’s liability could not be denied. 18. In alternative, the finding of the Tribunal regarding failure of claimant to prove himself as employee of owner needs examination in light of the material on record as under. 19. In the petition filed by the claimant, it was specifically averred in para-10 that the claimant was travelling in the tractor as labourer for unloading and loading of the mud. Again, in para-23, it was mentioned that on the ill-fated day, the claimant was engaged as labourer by the owner for loading and unloading the goods i.e. sand, grit and mud etc. In reply filed by respondents No.1 and 2, it was admitted that claimant was unloading the tractor trolley. There was no denial on their part to the fact that the claimant was engaged by them. The insurer except alleging that the claimant was travelling as an unauthorized traveler in the tractor and was a gratuitous passenger, had not specifically replied the averments regarding engagement of claimant by the owner and driver for the purpose of loading and unloading the tractor trolley on the date of accident. There also was no specific issue framed on this fact by the learned Tribunal. 20. As PW-2 claimant had stated in his examination-in-chief that he was a labourer. He further stated that he used to earn Rs. 5000/- per month by working as labourer with tractor. It was also the specific deposition of claimant that on 2.10.2006 he was opening the bolt of tractor trolley for the purpose of unloading. In cross-examination on behalf of owner and driver it was suggested to this witness that he was driver of the tractor and not the labourer. His status as employee was not denied. It was also the specific deposition of claimant that on 2.10.2006 he was opening the bolt of tractor trolley for the purpose of unloading. In cross-examination on behalf of owner and driver it was suggested to this witness that he was driver of the tractor and not the labourer. His status as employee was not denied. 21 In cross examination by the insurer, the claimant had stated that owner was his brother and was not paying any salary to him. 22 On analysis of material as extracted above, the finding that claimant was not proved as employee of the owner cannot be sustained for the reason firstly that the Tribunal had failed to consider that respondents had nowhere denied the averments made in paragraphs 10 and 23 of the petitions, as noticed above, secondly the statement of claimant was not appreciated as a whole and lastly it had erred by misunderstanding the meaning of employment in the context of the facts of the case. In private employment like the one in the instant case, it is invariably of casual nature and the payments are often made by the hirer of vehicle and the statements of the witnesses required appreciation in such perspective. Such employments cannot be proved by appointment letters as there would be none. It can be inferred from the facts and circumstances of each case and in the instant case the casual employment of claimant on tractor trolley for unloading was duly proved. There was no reason for claimant to be unloading the tractor trolley without consideration. For such reason also the insurer could not be absolved of its liability especially when extra premium of Rs. 25/- was received by it for covering one employee. 23. Learned counsel for the insurer placed reliance upon judgment passed by the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. vs. Brij Mohan & Others, (2007) 7 SCC 56 , however, due to difference in fact situation, the insurer cannot derive any help from such judgment. In the said case, the trolley was not insured and only tractor was insured. It was in such background that the judgment was passed in peculiar facts of the case. Similarly, reliance placed on United India Insurance Co. Ltd. vs. Serjerao and others, 2008 (1) ACJ 254 and also on New India Assurance Co. In the said case, the trolley was not insured and only tractor was insured. It was in such background that the judgment was passed in peculiar facts of the case. Similarly, reliance placed on United India Insurance Co. Ltd. vs. Serjerao and others, 2008 (1) ACJ 254 and also on New India Assurance Co. Ltd. v. Durgi Devi & Others, 2009 ACJ 1851 , on behalf of the insurer is misplaced only for the reason that the judgments in the said cases were passed in their own peculiar facts. There is no dispute in the instant case that the trolley was insured. 24. Perusal of Insurance Policy Ex. RA reveals that the insurer had received Rs.25/- as additional premium for an employee. Learned counsel for the insurer further stated that such premium covered only the driver of the tractor. Such contention also deserves to be rejected. The proviso appended to sub section (1) to Section 147 of the Motor Vehicles Act reads as under:- “Provided that a policy shall not be required— (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee— (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.” As per the aforesaid provision, the driver was not required to be specially insured by paying extra premium and was covered under the statutory requirement of the aforesaid provision. 25. In view of the above discussion, the appeal deserves to be allowed and the impugned award dated 01.06.2010 passed by the learned Motor Accident Claims Tribunal, Bilaspur, H.P. in M.A.C. No. 51 of 2007, is modified only to the extent that the liability to pay the awarded amount alongwith interest thereon shall be borne by the insurer and not by the owner. The appeal is accordingly disposed of, so also, the pending applications, if any.