Facts in brief of the present case are that claimant, namely, Smt. Leela @ Vimal , Anil Kumar, Balram and Sunil Kumar filed a claim petition under Section 166 (1) of the Motor Vehicles Act, 1988(hereinafter referred to as the Act) registered as Motor Accident Case No. 129 of 2001 (Smt. Leela and others Vs. National Insurance Company Ltd. and others) inter alia stating therein that on 28.03.2001, Ishwardeen, the husband of Smt. Leela was travelling on a tractor having registration No. U.P. 41B 3073 for agriculture work driven by Sri Shiv Magan, owned by Sanjay Kumar Gupta, due to mechanical defect, the tractor had fallen in the 'Gadda' , as a result of which the driver of the tractor has lost balance and Sri Ishwardeen has fallen from tractor, sustained injury, later on, on 29.03.2001 died at Medical College, Lucknow.
National Insurance Company Ltd. while contesting the claim petition had filed a written statement inter alis taking a defence that there is a breach of of the terms of insurance policy, so the insurance company is not liable to pay compensation as claimed by the claimants rather the same is to be paid by the owner of the tractor(Sri Sanjay Kumar Gupta).
Sri Sanjay Kumar Gupta, the owner of the Tractor has also filed a written statement taking a defence that the tractor is insured with the National Insurance Company Ltd., so the liability is of Insurance Company being the insurer of the tractor.
The Motor Accident Claims Tribunal/Additional District Judge, Court No. 7, Barabanki by means of the judgment and award dated 09.03.2009 had allowed the claim petition awarding a sum of Rs. 1,67,559.00/- with 6% interest per annum from the date of presentation of the claim application i.e. from 07.12.2005 and further directed that the said amount is to be recovered from the National Insurance Company Ltd. being insurer of the tractor under Section 173 of the Act.
Sri Deepak Kumar Agarwal, learned counsel for appellant/National Insurance Company Ltd. while supplying the case of the Insurance Company has submitted that the tractor is define under Section 2(44)of the Act which reads as under:-
"tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller."
And agriculture tractor is defined under Rule 2(b) of Central Motor Vehicles Rules, 1989 which reads as under:-
"agricultural tractor" means any mechanically propelled 4-wheel vehicle designed to work with suitable implements for various field operations and/or trailers to transport agricultural materials. Agricultural tractor is a non-transport vehicle."
Accordingly, he submitted that taking into consideration the abovesaid rule as well as Section Section 147 (1)(b)(ii) of the Act, quoted hereinbelow:-
"147. Requirements of policies and limits of liability- (1) (b)(ii) - Against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place."
The Insurance Company is not liable to pay compensation in the present case to the claimants as the tractor is not constructed to carry any load other than equipment used for the purpose of propulsion and excludes the road-roller, so once it is established from the report that Sri Ishwardeen (deceased) a passenger travelling on the tractor, the Insurance Company is not liable to pay any compensation rather is payable by the owner of the vehicle. In support of his contention, he has placed reliance on the judgment given by Himachal Pradesh High Court in the case of New India Assurance Company Ltd. Vs. Sudesh Kumari and others, 2007 (3) TAC 895 (H.P.), Mohan Kushwaha & others Vs. Ghanshyam & another, 2012 (3) TAC) 299 (All.), Oriental Insurance Co. Ltd. Vs. Anil Kumar and others, 2013 (2) TAC 298 (P & H.), as well as on the judgment given by the Hon'ble Apex Court in the case of New India Assurance company Ltd. Vs. Vedwati and others, 2007 AICC 635. So, the judgment passed by the Tribunal being contrary to law, liable to be set aside.
Sri Girish Kumar appearing on behalf of the owner of the vehicle submits, it is not in dispute that tractor is insured with the National Insurance Company Ltd. for a period 30.11.2000 to 29.11.2001, keeping in view the said fact as the accident has took place on 28.03.200, so the insurance company is liable to pay the compensation because Sri Ishwardeen /S/o Badal is travelling/sitting on the tractor in connection with an agricultural work. In support of his argument, he has placed reliance on the judgment given by a Division Bench of this Court in the case of Deepak Verma and another Vs. Ram Dhari and others, 2013 (31) LCD 652, relevant para quoted as under:-
"Admittedly, tractor was registered for agricultural purpose. The owner of the tractor have right to use the tractor to construct room to keep the agricultural equipments. Using the tractor to carry sand and other material for construction of room or to keep agricultural equipments cannot held to be commercial purpose. The Tractor registered for agricultural means not only carry out maneuver, fertilizers or agriculture produce but it shall cover all related works necessary for agriculturist to keep on their work. There cannot be straight jacket formula to interpret the word "agricultural purpose.". So many work done by agriculturist during the course of their agricultural work requires engagement of tractor or trolley, shall deem to be agricultural purpose. It shall depend upon the facts and circumstances of each case. It cannot be held to be commercial. There appears to be no evidence on record that the sand loaded in the trolley was delivered by the owner to some other person on payment of rent. In the absence of any evidence led by the Insurance Company that the sand loaded over by the trolley was for some other person on payment of rent, no presumption could have been raised by the Tribunal to record a finding that the tractor was used for commercial purpose. Ordinarily commercial purpose means use of tractor and trolley for profit earning providing the facility to others. "
Accordingly, Sri Girish Kumar appearing on behalf of the owner of the vehicle submits that there is no illegality or infirmity in the impugned judgment passed by the Tribunal, apeal lacks merit, liable to be dismissed.
Sri Upendra Prakash Pathak, learned counsel for O.P.Nos. 1 to 4 does not raise any argument in the matter in question.
I have heard learned counsel for parties who are present today and gone through the record.
As per the admitted facts of the present case tractor in question having registration No. U.P. 41 B 3073 belongs to Sri Sanjay Kumar Gupta, insured with the National Insurance Company Ltd. for the period 30.11.2000 to 29.11.2001, accident took place on 28.03.2001 and Sri Ishwardeen had died while he was sitting/travelling for agricultural work on the tractor.
Accordingly, the question which is to be considered in the present case is whether the Insurance Company is liable to pay any compensation is the claimant due to death of Sri Ishwardeen who was travelling on a tractor for agricultural work. The tractor is defined under Section 2(44) of the Motor Vehicle Act, 1988 and it is specifically provides that it is not constructed to carry any load other than equipment used for the purpose of propulsion and excludes the road-roller. The insurance is for death or bodily injury by an accident by the use of motor vehicle which in this case is tractor. The consideration would, therefore, be whether a person travelling/sitting on the tractor is entitled to any cover for insurance against the Insurance Company. Hon'ble the Apex Court in the case of New India Assurance company Ltd. Vs. Vedwati and others, 2007 AICC 635, held as under:-
"On a closer reading of the expressions "goods vehicle". "public service vehicle", "state carrier" and "transport vehicle" occurring in Sections 2(8), 2(25), 2(29) and 2(33) of the old Act with the corresponding provisions i.e. Section 2(14), 2(35) 2(40) and 2(47) of the Act, it is clear that there are conceptual differences. The provisions read as follows: Old Act:
"2 (8) "gods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers"
"2(25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage, and stage carriage."
"2(29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:" "2(33) "transport vehicle" means a public service vehicle or a goods vehicle:"
The Act (New Act):
"2(14) "goods carriage" any motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not to constructed or adapted when used for the carriage of goods:"
"2(35) "public service vehicles" means any motor vehicles used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab a motorcab, contract and stage carriage:"
" 2(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for (SIC) or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:" "2(47) "transport vehicle" means a pubic services vehicle a goods carriage an educational institution bus or a private service vehicle:"
(Underlined for emphasis) "Liability" as defined in Section 145(c) of the Act reads as follows:
"Liability", wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140."
Third party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to Section 147 of the Act (sic) is to be (sic) with Section 96 of the old Act. Proviso to Section 147 of the Act reads as follows: '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 injure 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. 1993 (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 vehicles, or
(c) if it is a good carriage, being carried in the vehicle, or
(ii) to cover any contractual liability."
It is of significance that proviso appended to Section 95 of the old Act contained Clause (ii) which does not find place in the Act. The same reads as follows:-
"except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises."
The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'WC Act"). There is no reference to any passenger in "goods carriage".
The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.
Our view gets support from a recent decision of a three- Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singh's case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award. This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others (2003(2) SCC
339). Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Others (2003(9) SCC 668), in National Insurance Co. Ltd. v. Baljit Kaur and Others (2004 (2) SCC 1) and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Others (2005 (12) SCC 243), the view in Asha Rani's case (supra) was reiterated.
Above being the position, the impugned order of the High Court is not sustainable and we accordingly set aside the same."
High Court of Himachal Pradesh in the case of New India Assurance Company Ltd. Vs. Sudesh Kumari and others, 2007 (3) TAC 895 (H.P.), held as under:-
"In the present case, admittedly, the vehicle in question was a tractor and the insurance policy has been proved on record as Exh. 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 payment of compensation to any passenger sitting on the said tractor. Therefore, the insurance company cannot be held liable. "
This Court in the case of Mohan Kushwaha & others Vs. Ghanshyam & another, 2012 (3) TAC) 299 (All.), held as under:-
"The argument has no substance inasmuch as it is settled that a tractor is not a transported vehicle and can only be used for agricultural purposes. It can not carry passengers.It is equally settled that tractor and trolley are two different motor vehicle and have to be insured separately. The trolley in the present case was not insured.
In (2007) 7 SCC 56 Oriental Insurance Co. Ltd. Vs. Brij Mohan and others the Supreme Court held that as the tractor/trolley was not insured in addition to the tractor and the tractor was not being used for agricultural purposes for which it was insured the claim of the labourer traveling in the trolley on being injured in an accident was not maintainable against the Insurance Company and the owner of the vehicle was liable for the compensation. The aforesaid decision was followed by the Supreme Court in (2008) 7 SCC 425 United India Insurance Co. Ltd. v. Serjerao. It was held that liability regarding labourers traveling in trolleys is only upon the owner of the tractor/trolley and the Insurance Company is not liable to indemnify the loss.
Similar view has been expressed by the Supreme Court in National Insurance Company vs. V. Chinnamma and others 2004 3 TAC 577 (SC). In the said case the tractor and the trolley attached to it was used for transporting vegetables for sale in the market and not for agricultural purposes. It was held that the tractor was meant to be used for agricultural purposes. It cannot be used as a transport vehicle. The trailer or the trolley attached to the tractor would also required to be used for agricultural purposes unless registered otherwise."
Punjab and Haryana High Court in the case of Oriental Insurance Co. Ltd. Vs. Anil Kumar and others, 2013 (2) TAC 298 (P & H.), has held that "for a death and injury to a passenger in a tractor, the Insurance Company could not be made liable, for, there exists no obligation under Section 147 of MV Act to cover the risk for a person who was traveling in a vehicle which was not fit to carry passengers. The issue of whether the Insurance Company could still be made liable for the purpose of satisfying the claim allowing for a right of recovery against the owner and the driver has also been considered by this Court in United India Insurance Company Ltd. v. Ramji Lal and others8 (2010 -4) 160 P.L.R. 436 (S.C.). The award rendered by the Tribunal making the Insurance Company, in such a situation would, therefore, required to be set aside and accordingly, set aside."
So far as the judgment which is cited on behalf of the owner of the vehicle i.e. Deepak Kumar (supra), is concerned, the same is not applicable in the present case rather does not hold the field good as per the judgment given by the Apex Court in the case of New India Assurance company Ltd. Vs. Vedwati and others, 2007 AICC 635, so the owner of the vehilce, Sri Sanjay Kumar Gupta cannot derive any benefit from the said judgments.
For the foregoing reasons, the appeal filed by the National Insurance Company Ltd. is allowed and the judgment and award dated 09.03.2009 passed by the Motor Accident Claim Tribunal/Additional District Judge, Court No. 7, Barabani in M.A.C.P. No. 129 of 2001 (Smt. Leela Alias Vimal & others Vs. National Insurance Company Lmt. & others) thereby awarding a sum of Rs. 1,67,599/- with 6% interest from the date of presentation of the claim petition is modified to the extent that the National Insurance Company Ltd./appellant is not liable to pay the same rather to be recovered from the owner of the tractor having registration No. U.P. 41 B 3073 i.e. from Sri Sanjay Kumar Gupta and the said amount should be paid by him within a period of three months from today to the claimants.
Further, at the time of filling of the appeal, the appellant/National Insurance Company Ltd. has deposited Rs. 25,000/- as per Section 173 of the Motor Vehicle Act and thereafter in pursuance to the order dated 16.03.2010 passed by this Court, the remaining amount as awarded by the Tribunal was also deposited, so keeping in view the said fact, the National Insurance Company Ltd./appellant can withdraw the said amount.
Order Date :- 11.11.2014 Ravi/