Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 534 of 2004 Appellant :- United India Insurance Co Ltd Respondent :- Shamima Khatoon & Others Counsel for Appellant :- Saurabh Srivastava
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Heard Sri Saurabh Srivastava for the appellant and Sri Harish Kumar Shukla, learned counsel for the respondent.
At the admission stage this appeal is taken up for final hearing. The Tribunal has mulcted the liability on the Insurance Company and directed it to pay a sum of Rs.2,91,340/- with interest at the rate of 6% to the claimants.
The main challenge is to the finding of facts that the driver did not have license to drive tractor trolley and the vehicle was used in contravention of the policy condition namely non agriculture purpose and therefore it was in breach of policy condition.
It is further submitted that the compensation awarded is on the higher side.
While going through the facts, it is submitted by learned counsel for the respondent that a Division Bench of this Court in United India Insurance Company Limited Vs. Suman And Others, 2013 LawSuit (All) 716 has held that a driver holding license to drive LMV can drive a tractor and has submitted that tractor used for collecting sand cannot be said to have breached the policy condition and in any way it is submitted that the deceased was a third party and it is dispute between the owner and the Insurance Company.
The issue of tractor being used for evacuating sand is not a breach of policy condition. The apex court in State of Orissa & others Vs. Bijaya C. Tripathy AIR 2005 SC 1431 and Fahim Ahmad & others Vs United India Insurance Company Ltd and others 2014 (2) T.A.C. 383 (SC) and this High Court in First Appeal From Order No. 1507 of 2003 (UPSRTC through Regional Manager Vs. Smt. Sukha Devi & Others) have held that if there is no fundamental breach of policy and using tractor for carriage of sand is not a fundamental breach of policy under Section 147 of the Motor Vehicles Act, 1988 giving rise to the Insurance Company to avoid its liability.
The question of driver driving the vehicle with LMV license is also now covered by the decision in Mukund Dewangan Vs. Oriental Insurance Company Limited, A.I.R. 2017 (SC) 3668 and Sant Lal Vs. Rajesh and Others, Etc., 2017 (3) R.C.R. (Civil) 757.
The submission of the counsel for the appellant that compensation awarded is on the higher side is also devoid of merits hence rejected in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050, In that view of the matter, the appeal fails and is dismissed.
Order Date :- 22.2.2018 DKS