1. Heard Sri Ashutosh Upadhyay, learned counsel for the appellant and Sri, Arvind Kumar Singh, learned counsel for the respondents.
2. This appeal has been filed by the owner of the offending vehicle being aggrieved of award dated 28.08.2015 passed by learned Motor Accident Claims Tribunal/ Additional District Judge, Court No.1, Badaun in Claim Case No.29 of 2013 (Nanhi Devi and another Vs. Saudan Singh and others) on the ground that, learned Claims Tribunal has arbitrarily granted recovery right in favour of the Insurance Company in an arbitrary and illegal manner.
3. Learned counsel for the appellant submits that admittedly fact of the matter is that on 04.03.2012, when accident took place at about 3:10 p.m. deceased Bhoore was travelling along with sugarcane which was loaded in the trolley attached to a tractor driven by Hemendra, while tractor was overtaken by Hemendra, Bhoore had fallen down from the trolley and had died. It is submitted that tractor was insured for the relevant period under miscellaneous class-II vehicles, vehicles liability only policy.
4. According to Clause-6 of the terms and conditions, policy was effective when tractor is to be used only for agricultural and forestry purposes. It is submitted that since transportation of sugarcane from the fields will come under the definition of agricultural and forestry purposes, therefore, there being no violation of the policy conditions, Tribunal erred in exonerating the insurance company. It is submitted that it is settled principle of law that if the tractor attached with trolley is used for authorized purpose, namely, agriculture and forestry purpose, then there is no need for a separate registration and insurance. Placing reliance on the judgment of Supreme Court in case of National Insurance Company Ltd. Vs. V. Chnnamma and others; 2004 (7) JT 167, it is held that the carriage of the vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes, but the same itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. Placing reliance on this judgment of Supreme Court and that of Uttar Pradesh High Court in case of United India Insurance Co. Ltd. Vs. Smt. Suman and others; (2014) ACJ 1727 passed on 06.03.2013 in F.A.F.O. No.611 of 2013, it is submitted that ratio of law laid down in case of Oriental Insurance Company Ltd. Vs. Brij Mohan and others; 2007 (3) T.A.C. 20 (S.C.) requiring that trailer and trolley ought to be separately insured, if used for commercial purpose will not be applicable to the facts and circumstances of the present case, especially when, Insurance Company has failed to establish that tractor trolley was being used as a commercial vehicle for commercial purpose at the time of accident, it cannot be inferred that liability could have been shifted from the Insurance Company to the owner driver of the tractor.
5. Learned counsel for the respondent takes an objection that since deceased was sitting over sugarcane pile, therefore, no liability can be fastened on the Insurance Company.
6. After hearing learned counsel for the parties and going through the record, it is apparent that learned Tribunal had framed issue no.4 to the effect that whether impleaded tractor was being used in violation of the contract of insurance, Insurance Company had raised an objection before the learned Tribunal that only tractor was insured and not the trolley and, therefore, tractor was used in violation of the terms and conditions of the insurance policy. No plea of tractor or trolley being used for commercial purpose was raised before the learned Tribunal, nor any issue was framed in this regard. Learned Tribunal also recorded a finding that tractor and trolley were used for agricultural purposes and tractor and trolley were used as per the terms and conditions of the policy of the insurance and there was no violation of the terms and conditions of the policy, yet arbitrarily granted right of recovery in favour of the Insurance Company.
7. While deciding issue no.5, learned Tribunal opined that since tractor was insured only for its owner/driver, therefore, in absence of any insurance for a passenger or other person (labour), therefore, liability will not be of the Insurance Company to pay the compensation, but that of the owner-driver of the tractor. This finding is contrary to the details of the policy, which clearly makes a mention that basic T.P. premium was Rs.1350/-, there was addition of P.A. of owner driver-GR 36 A and premium charge is Rs.100/- and there is addition of L.L. to Employees-IMT-29.
8. As per the Indian Motor Tariff, 29 provides, that there will be legal liability to employees of the insured other than paid driver and/or conductor and/or cleaner, who may be travelling or driving in the employers car. There is no evidence that what was the nature of relationship between deceased-Bhoore and the owner of the tractor. No evidence was led by the Insurance Company to suggest that there was no contractual relationship between the present appellant and the deceased-Bhoore and, therefore, in my opinion, learned Tribunal erred in overlooking this coverage under IMT-29 for which, a premium of Rs.25/- was paid while deciding the issue no.5 and has, thus, wrongly fastened liability on the owner-driver giving recovery right to the Insurance Company.
9. When it has come on record that tractor trolley were being used for agricultural purposes and there is no violation of the policy condition meaning thereby that there was no need for a separate insurance of the trolley in question, then Tribunal was not justified in shifting the burden on the shoulders of the owner-driver of the tractor and extending recovery rights in favour of the Insurance Company. Therefore, to this extent, award needs to be set aside and is set aside.
10. It is modified and directed that Insurance Company shall pay the compensation and will have no recovery right against the owner and the driver.
11. In above terms, appeal is allowed and disposed off.
Order Date :- 2.2.2021 Ashutosh