This First Appeal From Order under section 173 of the Motor Vehicles Act, 1988 (For short the "Act") has been preferred by the appellant-insurance company against the judgment and award dated 25.11.2003 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Lakhimpur Kheri (Hereinafter referred to as the "Tribunal") in Motor Accident Claim Petition No. 87 of 2002 (Shiv Kumar Vs. Shyam Prakash and three others) presented under section 166 of the Act by Shiv Kumar, the claimant for the injuries and disability on account of amputation of left leg near knee joint, whereby compensation of Rs. 1,48,500/- with pendent lite and future interest at the rate of Rs. 6% per annum was allowed.
The appellant-insurance company has filed the instant appeal on the ground that injured was sitting in a trolley attached with Tractor having registration no. U.P. 31-D/7505. The tractor was not used for agricultural purposes at the time of accident when petitioner sustained injuries. As such, the insurance company, the appellant is not liable to pay the compensation to the claimant. The liability to pay compensation is only of owners of the offending vehicle Chandrabhal (respondent no.2), Sewak Ram (respondents 3) and driver Shyam Prakash (respondent no. 1).
Heard Shri Anil Srivastava, learned counsel for the appellant, Sri Vimal Kishore Verma, learned counsel for respondents 2,3 and 4 and Shri R.S. Tomar, learned counsel for the respondent-claimant and also perused the record of this appeal as well as the record of the Tribunal.
It has been contended by the learned counsel for the appellant-insurance company that the statement of P.W. 1 Shiv Kumar, injured is not believable as he in his statement deposed at one place that after hitting him, the tractor's driver fled away from the spot, but at another place, he deposed that tractor stopped on spot at the time of accident and the owners of the tractor requested him that since the matter is of relationship, do not report to the police and they will bear all the expenses of his treatment and also pay the expenses through out life. But neither they managed for treatment nor given expenses to the claimant. When he recovered to some extent from injuries, he lodged the report of this incident. In cross examination, the claimant gave explanation for not lodging the first information report promptly, which is not acceptable at all. The owners and driver of the offending vehicle are not only closely related to each other but also are equally related to the injured. The case is of collusion in between the owners and claimant. Thus, the petition deserves to be dismissed.
Normally, these defences are not available to the insurance company in absence of permission under section 170 of the Act granted by the Tribunal. Before the Tribunal no such permission under section 170 of the Act has been sought. Even otherwise in para 10 of the written statement filed by the insurance company, it has been pleaded that for this alleged accident the injured himself was liable and responsible as he contributed equally alongwith driver as he was sitting in tractor's trolley. This shows that happening of the accident is not denied. The Tribunal on the basis of evidence adduced by the parties recorded the findings that accident occurred when the injured was going on foot and the tractor hit him on the public way.
D.W.2 Dharmendra Kumar, Investigator of Oriental Insurance company was examined by appellant. He stated on oath that he went to village where the claimant resides and recorded the statements of some villagers in writing which he filed alongwith report. These villagers told him that Shiv Kumar was sitting in a tractor trolley with his leg outside the trolley and near village Hargaon the tractor driver was taking it back. During this process, the rear portion of the trolley hit the wall, by which injuries were sustained by Shiv Kumar. He also recorded the statement of Village Pradhan of Gram Panchayat Dimhaura, who gave his statement, wherein it has been stated that Shiv Kumar met with an accident when he had gone to village Gulauria on a tractor trolley, but no accident was occurred with Shiv Kumar in village Babaganj.
D.W. 2 Dharmendra Kumar himself is not a witness of the alleged accident. He recorded the joint statement of some of the persons available on record of the Tribunal as paper no. 25 /44. It appears to be the joint statements of several persons of village Taudakpur to this effect that Shiv Kumar in the month of December, 2011 had gone to village Gulariya (near Hargaon) in connection with Mundan ceremony in a tractor trolley. Shiv Kumar was sitting in the back of tractor trolley with legs outside the trolley and when driver backed the tractor trolley, the rear portion of the trolley hit the wall, as a result of which serious injuries caused to his left leg. He was got admitted in District Hospital, Lakhimpur Kheri, where his left leg was amputated after 2-3 days during treatment.
Perusal of the joint statements reviles that none of the persons stated that accident was occurred before them or they saw Shiv Kumar when accident occurred. Similarly paper no. 25/45 which is certificate of Village Pradhan, Grampanchyat Dimhaura, Vikas Khand, Lakhimour Kheri Block to the effect that Shiv Kumar had gone to village Gulariya in connection with Mundan ceremony in a tractor trolley on 5.12.2001 where he received injuries in the accident and his left leg was amputated due to those injuries.
Firstly, the statement which has been jointly taken of the alleged villagers, cannot be accepted in evidence in absence of oral examination of any one of them who signed the document. Similar is the position of certificate of the Village Pradhan . Secondly, from the perusal of those documents it does not transpired that persons who signed the documents are eye witnesses of the accident. Therefore, the evidence of D.W. 2 Dharmendra Kumar based on aforesaid documents cannot be taken into consideration and is not sufficient to discard the evidence adduced by the injured himself.
It is pertinent to mention here that owners of the tractor in question and its driver categorically stated that no accident has ever taken place with offending vehicle. They have not set up any case that injured was sitting in the tractor or the accident was occurred as alleged by the insurance company. Neither owners nor driver admitted in the pleadings or in statement on oath that injured was sitting in tractor trolley.
Shyam Prakash D.W. 1 was also examined, who is son of the owner of the tractor in question and driver of the same. Similar stand has been taken by him. The statement of Shyam Praksh has not been accepted in view of version given by the injured.
It is true that in this case FIR has been lodged after more than five months from the date of accident but merely lodging of the FIR with delay by itself is not sufficient to throw out the case of the claimant. The claimant has filed documentary evidence in the form of discharge certificate issued by the Ayush Nursing Home, Lakhimpur Kheri where he remain admitted after the accident till 7.12.2001. Doctor has issued Disability Certificate to the injured.
Neither the owners nor driver of the offending vehicle admit that injured was sitting in the tractor trolley when he was going in connection with Mundan ceremony. The insurance company failed to establish this fact that injured was sitting in the trolley attached with tractor at the time of alleged accident and also failed to establish by any evidence that accident was occurred as stated and pleaded by the appellant.
So far as the terms and conditions of the breach of policy is concerned, it has been stated that tractor could not be used for non agricultural purposes or for carrying the passengers. Carrying the passengers amount to use of tractor with trolley as transport vehicle. Therefore, the insurance company cannot be saddled with liability.
Second contention of the learned counsel for the insurance company is that tractor was attached with trolley and was being used for carrying person. The same is converted into transport vehicle, but the driving licence to drive possessed by driver was for light motor vehicle, so it cannot be a valid licence to drive the transport vehicle.
I do not find any substance in the submission of the learned counsel for the insurance company for the reason that it has not been established in this case that injured sustained injuries when he was sitting in the trolley attached with tractor in question. Secondly the burden to prove the breach of terms of the policy would be on the insurance company as held by the Division Bench of this Court in United India Insurance Company Ltd. Vs. Smt. Kushma Devi and others 2008 (26) LCD 1752. In this case, it is not in dispute that tractor was insured with appellant-insurance company. Admittedly the tractor was insured for agricultural purposes. The Supreme Court in Nagashetty Vs. United India Insurance Company Co. Ltd. and others 2001 SCC (Crl.) 1408 held that driving licence to drive tractor would not be invalid merely because the driver was driving a tractor which had a trailer attached to it and was being used for carrying goods at the time of accident. The Apex Court also held that the tractor in such situation cannot be termed as a goods vehicle. Therefore, it cannot be insisted that driver was competent to drive tractor must have a licence to drive the goods vehicle.
The appellant insurance company failed to establish that the vehicle in question at the time of accident was not being used for agricultural purposes. It is not stated by Shiv Kumar, the claimant that at the time of accident the tractor was attached with trolley. Neither the owners of the offending vehicle stated anywhere that when the accident was occurred the tractor was attached with trolley nor any evidence has been adduced by the insurance company, by which it could be established that when accident was occurred, the tractor was attached with trolley used for carrying passengers.
In view of the above, I do not find any substance in the plea raised by the appellant-insurance company with regard to breach of terms of policy.
No other point has been pressed.
Having considered all the facts and circumstances of the case, I find no substance in the appeal. It is accordingly dismissed.
Statutory amount or any other amount under the impugned award, if deposited by the appellant-insurance company with this Court, the same shall be remitted within a period of one month from the date of this order. If the entire amount has not been deposited by the insurance company under the impugned award, the same shall also be deposited within the aforesaid period before Tribunal. The Tribunal shall disburse the amount under the impugned award to the claimant in terms of the award.
Dated:16.10.2014 GSY