1. Heard Sri Mohd. Asim Zulfiquar, learned counsel for the appellant and Sri Amit Singh, learned counsel for the respondents-insurance company.
2. This appeal has been filed by the claimants being aggrieved of the award dated 13.03.2020 passed by learned Motor Accident Claims Tribunal/Additional District and Sessions Judge, F.T.C.-02, Allahabad on the ground that learned Tribunal has wrongly exonerated the Insurance Company though no evidence was led by the Insurance Company to the effect that tractor and trolley in question which were the cause of the accident, when deceased Rama Shanker died then firewood was transported in the tractor bearing Registration No.U.P. 70-G. It has come on record that Surya Bali was sitting on the mud-guard of the tractor, whereas, Rama Shanker was sitting over the heap of firewood dumped in the trolley. It is submitted that in absence of cogent evidence that tractor trolley were driven in violation of the policy condition, the Tribunal was not justified in exonerating the Insurance Company.
3. Reliance is placed on the judgment of Supreme Court in case of Shivaraj Vs. Rajendra and another; 2018 (4) TAC 1 (SC), wherein, in para 9 and 10, it has been observed as under:-
"9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.
10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh and others, (2004) 3 SCC 297 : 2004 (1) T.A.C. 321, Mangla Ram Vs. Oriental Insurance Co. Ltd., (2018) 5 S.C.C. 656 : 2018 (2) T.A.C. 337; Rani & Ors. Vs. National Insurance Co. Ltd. & Ors., 2018 (9) SCALE 310 : 2018 (3) 683 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others, (2017) 4 SCC 796 : 2017 (2) T.A.C. 5. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent no.1)."
4. Judgments in case of Manuara Khatun and others Vs. Rajesh Kr. Singh and others; 2017 (2) T.A.C. 5 (S.C.) so also in case of Shamanna and another Vs. Divisional Manager, Oriental Insurance Co. Ltd. and others, 2018 (3) TAC 677 (SC) have been placed now to impress that Insurance Company should have been directed to pay and then recover the amount of compensation from the owner of the tractor.
5. However, the fact of the matter is and it has remained unrebutted that tractor was driven along with the trolly taking firewood to ignite and supply energy to a bricklin. It has also come on record that tractor was insured for agricultural purposes and not for commercial purpose. Even in the claim petition, contention of the claimant was that on 03.01.1997, they had gone to Meja, Allahabad in search of work along with their son Rama Shanker and another person Suryabali to village Kathauli. There is an admission that Rama Shanker and Suryabali were carrying jungle wood/firewood to Kathauli. Suryabali was sitting on the mud-guard of the tractor and Rama Shanker was sitting on the heap of the firewood loaded in the trolley. Tractor was driven recklessly and negligently by its driver Aashika Prasad Tiwari who has been admittedly not impleaded as a party in the claim petition. It is also part of the pleading of the claimants only that when tractor reached near village Kathauli then close to the pumping set one of the tyres of the trolley had fallen into the ditch, as a result, trolley tilted and the wood which was stagged in the trolley had fallen on the right hand side along Rama Shanker who sustained injuries, when he was taken to Ram Nagar Hospital, where he was declared as dead. At the time of the accident, age of the deceased was 18 years and his income was Rs.2500/- per month.
6. When claimants have themselves pleaded that tractor was being used for purposes other than agriculture, and there is evidence of P.W.-2, witness of the claimants, namely, Suryabali on record, who stated on affidavit that incident took place on 03.01.1997 in front of him. Rama Shanker had taken the wood to be stocked at Kathauli 'Bhatta' (brickiln) belonging to Madhvendra Sharma then there was no requirement on the part of the Insurance Company to controvert the evidence led by the claimants themselves that the tractor was used for the purposes other than agricultural purpose.
7. When there is a fundamental breach of the policy condition, then none of the judgments cited by the learned counsel for the appellant will come to the rescue of the appellant so to direct the Insurance Company to first pay and then recover. The principle of pay and recover is applicable in case of technical breach and not in case of fundamental breach.
8. There is evidence on record that tractor was used for commercial purpose, therefore, in the light of the law laid down in case of Oriental Insurance Company Ltd. Vs. Brij Mohan and others; 2007 (3) T.A.C. 20 (S.C.), there was requirement of trailer and trolley to be separately insured. Since, they were used for commercial purpose, this mandatory requirement of separate insurance being not fulfilled, now it is not open to the claimants to suggest that Insurance Company has been wrongly exonerated. Present is a case of no insurance and, therefore, there is no question any breach of insurance policy when directions can be issued for pay and recover in the light of the judgment rendered in case of Shivaraj Vs. Rajendra and another; 2018 (4) TAC 1 (SC) so also in case of Manuara Khatun and others Vs. Rajesh Kr. Singh and others; 2017 (2) T.A.C. 5 (S.C.) and in case of Shamanna and another Vs. Divisional Manager, Oriental Insurance Co. Ltd. and others; 2018 (3) T.A.C. 677 (S.C.) therefore, Appeal fails and is dismissed.
Order Date :- 2.2.2021 Ashutosh