1.The short question, which arises for
consideration in this appeal, is who is JUDGMENT
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 JUDGMENT
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, JUDGMENTbut 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, JUDGMENT
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 JUDGMENT 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.
(P. Sathasivam)
(Ranjan Gogoi)
(N.V. Ramana) New Delhi;
March 25, 2014.