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Accident claim – M.V.Act Section 149(2)(a)(i)(a) – Tractor and trolley with sand for tank bed in field – Not other than agriculture purpose – Hit the victim who died on the spot – claim granted against insurance company – High court held that company is not liable to pay and as such it can recover the amount from the owner – who has to pay compensation ? – Apex court held that as per record merely carrying sand in trolley for constructing a tank bed in the agriculture field does not amount to use of the tractor for commercial purpose and does not amount violation of terms and conditions of insurance policy and as such set aside the order of High court and allowed the appeal = FAHIM AHMAD & ORS. … APPELLANTS VERSUS UNITED INDIA INSURANCE CO. LTD. & ORS. …RESPONDENTS = 2014 (March. Part ) judis.nic.in/supremecourt/filename=41335

Accident claim – M.V.Act Section 149(2)(a)(i)(a) – Tractor and trolley with sand  for tank bed in field – Not other than agriculture purpose – Hit the victim who died on the spot – claim granted against insurance company – High court held that company is not liable to pay and as such it can recover the amount from the owner – who has to pay compensation ? – Apex court held that as per record merely carrying sand in trolley for constructing a tank bed in the agriculture field does not amount to use of the tractor for commercial purpose and does not amount violation of terms and conditions of insurance policy and as such set aside the order of High court and allowed the appeal =

 

who is liable  to  pay  the  amount  of  compensation

           awarded by the Motor Accident Claims Tribunal, Udham Singh Nagar

           (for short, ‘the Tribunal’) in M.A.C.P. No. 98/2003  vide  Award

           dated 06.08.2004.=

When he reached the

           Station Road in front of godown,  suddenly  one  tractor  having

           registration No. UP-21-H-4596 coming at a high speed in  a  rash

           and negligent manner hit the deceased from behind, as  a  result

           of which, he became seriously injured  and  died  on  the  spot.

           Thus,   the   appellants-claimants   claimed   compensation   of

           Rs.5,00,000/- and averred that the deceased was  49  years’  old

           having monthly income of Rs.4,600/- (Rs.3,600/- from mason  work

           and Rs.1,000/- from selling of  milk  of  2–3  buffaloes).   The

           Tribunal  assessed  the  annual  income  of  the   deceased   at

           Rs.24,000/- and applying  the  multiplier  of  13,  awarded  the

           compensation  of  Rs.3,12,000/-  with  interest.   However,  the

           Tribunal held the Insurance  Company,  i.e.,  respondent  No.  1

           herein, liable to pay the said compensation because the  tractor

           was insured with it as per rule at the time of the accident.=

the High  Court

           of Uttranchal at Nainital was partly allowed  on  18.05.2006  to

           the extent that the amount of compensation  so  awarded  by  the

           Tribunal shall be paid by the insurance company,  but  it  shall

           have a right to recover the same from the owner of the offending

           tractor as there  was  breach  of  condition  of  the  insurance

           policy.  This was so held because at the time of  the  accident,

           the tractor was carrying sand.  It is this decision,  which  has

           been assailed in the present appeal.=

 A perusal of  the  records  shows  that,  at  the  time  of  the

           accident, a trolley was attached with  the  tractor,  which  was

           carrying sand for the purpose –

        7. of construction of underground  tank  near  the  farm  land  for

           irrigation purpose(s).  However, merely because it was  carrying

           sand would  not  mean  that  the  tractor  was  being  used  for

           commercial purpose and consequently, there was a breach  of  the

           condition of policy on  the  part  of  the  insured.   There  is

           nothing on record to show that the tractor was  being  used  for

           commercial purpose(s)  or  purpose(s)  other  than  agricultural

           purpose(s), i.e., for hire  or  reward,  as  contemplated  under

           Section 149(2)(a)(i)(a) of the said Act.=

We may also notice that this Court  in  National  Insurance  Co.

           Ltd. Vs. V. Chinnamma & Ors., JT 2004  (7)  SC  167,  held  that

           carriage of 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.  Thus, a  tractor

           fitted with a trailer may or may not answer  the  definition  of

           ‘goods carriage’ contained in Section 2(14) of the said Act.



       11. In view of above, we are of the view  that,  in  the  facts  and

           circumstances of the case, the High Court was not  justified  in

           transferring the –

       12. burden of paying the amount of compensation from respondent  No.

           1-Insurance Company to the appellants herein.



       13. We, thus, allow the appeal.  Accordingly, the impugned  judgment

           dated 18.05.2006 is set aside, in so far as the right to recover

           the amount awarded from the owner of the tractor.  No orders  as

           to costs.     

 

2014 (March. Part ) judis.nic.in/supremecourt/filename=41335                  P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

NON-
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6220 OF 2008

FAHIM AHMAD & ORS. … APPELLANTS
VERSUS
UNITED INDIA INSURANCE CO. LTD. & ORS. …RESPONDENTS
J U D G M E N T

N.V. RAMANA,J.

1. The short question, which arises for consideration in this
appeal, is who is liable to pay the amount of compensation
awarded by the Motor Accident Claims Tribunal, Udham Singh Nagar
(for short, ‘the Tribunal’) in M.A.C.P. No. 98/2003 vide Award
dated 06.08.2004.
2. Brief facts of the case are thus : On 06.03.2003, the deceased
Atma Singh, the husband of appellant –
3. No. 1 and the father of appellants No. 2 and 3 herein, was going
from Kashipur crossing towards Tada Ujjain. When he reached the
Station Road in front of godown, suddenly one tractor having
registration No. UP-21-H-4596 coming at a high speed in a rash
and negligent manner hit the deceased from behind, as a result
of which, he became seriously injured and died on the spot.
Thus, the appellants-claimants claimed compensation of
Rs.5,00,000/- and averred that the deceased was 49 years’ old
having monthly income of Rs.4,600/- (Rs.3,600/- from mason work
and Rs.1,000/- from selling of milk of 2–3 buffaloes). The
Tribunal assessed the annual income of the deceased at
Rs.24,000/- and applying the multiplier of 13, awarded the
compensation of Rs.3,12,000/- with interest. However, the
Tribunal held the Insurance Company, i.e., respondent No. 1
herein, liable to pay the said compensation because the tractor
was insured with it as per rule at the time of the accident.
4. Against the award of the Tribunal, the appeal filed under
Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the
said Act’) registered as A.O. No. 425 of 2004 in the High Court
of Uttranchal at Nainital was partly allowed on 18.05.2006 to
the extent that the amount of compensation so awarded by the
Tribunal shall be paid by the insurance company, but it shall
have a right to recover the same from the owner of the offending
tractor as there was breach of condition of the insurance
policy. This was so held because at the time of the accident,
the tractor was carrying sand. It is this decision, which has
been assailed in the present appeal.
5. We have heard arguments advanced by learned counsel for the
parties and perused the records.
6. A perusal of the records shows that, at the time of the
accident, a trolley was attached with the tractor, which was
carrying sand for the purpose –
7. of construction of underground tank near the farm land for
irrigation purpose(s). However, merely because it was carrying
sand would not mean that the tractor was being used for
commercial purpose and consequently, there was a breach of the
condition of policy on the part of the insured. There is
nothing on record to show that the tractor was being used for
commercial purpose(s) or purpose(s) other than agricultural
purpose(s), i.e., for hire or reward, as contemplated under
Section 149(2)(a)(i)(a) of the said Act.
8. Although the plea of breach of the conditions of policy was
raised before the Tribunal, yet neither any issue was framed nor
any evidence led to prove the same. In our opinion, it was
mandatory for respondent No. 1-Insurance Company not only to
plead the said breach, but also substantiate the same by
adducing positive evidence in respect of the same. In the
absence of any such evidence, it cannot be presumed that –
9. there was breach of the conditions of policy. Thus, there was
no reason to fasten the said liability of payment of the amount
of compensation awarded by the Tribunal on the appellants
herein.
10. We may also notice that this Court in National Insurance Co.
Ltd. Vs. V. Chinnamma & Ors., JT 2004 (7) SC 167, held that
carriage of 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. Thus, a tractor
fitted with a trailer may or may not answer the definition of
‘goods carriage’ contained in Section 2(14) of the said Act.
11. In view of above, we are of the view that, in the facts and
circumstances of the case, the High Court was not justified in
transferring the –
12. burden of paying the amount of compensation from respondent No.
1-Insurance Company to the appellants herein.
13. We, thus, allow the appeal. Accordingly, the impugned judgment
dated 18.05.2006 is set aside, in so far as the right to recover
the amount awarded from the owner of the tractor. No orders as
to costs.
…………..C.J.I.
(P. Sathasivam)
………………J.
(Ranjan Gogoi)
………………J.
(N.V. Ramana)
New Delhi;
March 25, 2014.

 

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