UNITED INDIA INSURANCE CO LTD Vs. SARASU

JUDGEMENT

(1.) THE Civil Miscellaneous Appeals are filed by the Insurance Company against the Judgment and Decree made in MCOP Nos.467 of 1995 and 466 of 1995 dated 26.02.1998 on the file of the Motor Accidents Claims Tribunal (Sub Court), Tindivanam.

(2.) BACKGROUND facts in a nutshell are as follows:- The deceased Elumalai and Selvaraj were engaged by one Ramu Naidu, who is the fifth respondent in CMA No.735 of 1999 and fourth respondent in CMA No.736 of 1999, as a labourer to load and unload the goods vehicle. Both the deceased were travelling in the said vehicle under the contract of the said Ramu Naidu. The vehicle was insured with the appellant / Insurance Company. On 16.02.1995 at about 06.00 p.m., both the deceased Elumalai and Selvaraj with other labourers loaded a trailer bearing New Registration No.47-A-0809 (Old Registration No.TN-47-A-0799), attached to the tractor bearing Registration No.TNG-1307 at Se.Boothur Village, with boulders. Both the deceased also boarded the vehicle and the said tractor was proceeding towards Tiruvannamalai Town on 17.02.1995. At about 1.00 hours when the tractor was nearing Melpappambadi Village in the Tiruvannamalai to Tindivanam Road, the driver drove the tractor in a rash and negligent manner due to which the tractor rolled down on a slope and capsized. In the process, the boulders fell on both the deceased causing their death on the spot. The claimants in MCOP No.467 of 1995 (CMA No.735 of 1999) are wife, daughter, son and mother of the deceased Elumalai. The claimants in MCOP No.466 of 1995 (CMA No.736 of 1999) are daughter, two sons and the mother of the deceased Selvaraj. The claimants in both the appeals have claimed a sum of Rs.3,00,000/- each, as compensation before the Tribunal. The appellant / Insurance Company resisted the claims. On pleadings, the Tribunal framed the following issues:-

(3.) HEARD the counsel. On the side of the claimants, witnesses P.W.1 to P.W.3 were examined and documents Ex.P1 to Ex.P3 were marked. On the side of the Insurance Company, no witnesses were examined and no documents were marked. P.W.1 is one Malarkodi, daughter of the deceased Selvaraj. P.W.2 is one Sarasu, wife of the deceased Elumalai. P.W.3 is one Dhandapani, driver of the tractor. Ex.P1 is the attested copy of First Information Report. Ex.P2 is the attested copy of the Post Mortem Report of the deceased Selvaraj. Ex.P3 is the attested copy of the Post Mortem report of the deceased Elumalai. The claimants have also given oral evidence that the accident had occurred only due to the rash and negligent driving of the driver of the tractor, P.W.3. P.W.3 has also given evidence that he also travelled along with the deceased Selvaraj and Elumalai. He further stated that the tractor was loaded with boulders and was going towards Tiruvannamalai. When it was proceeding in the new bridge, situated near Melpappambadi bridge, the tractor was unable to pull the load and due to the weight of the load, the tractor and the trailer capsized. In the process both the deceased died. An F.I.R. was also lodged with the Ananthapuram Police Station. Ex.P1 is the F.I.R. In the F.I.R. also it is clearly stated that the accident had occurred only due to the rash and negligent driving of the driver of the tractor. P.W.3, the driver of the tractor is also an eye-witness to the accident. The contention of the learned counsel for the appellant is that the tractor was used not for agricultural purpose and it has been used only for non-agricultural purpose, which amounted to violation of the terms and conditions of the policy. It is therefore, submitted that the Insurance Company is not liable to pay any compensation. P.W.1-daughter of the deceased Selvaraj, in her evidence, stated that boulders were loaded only for the purpose of constructing a well for agricultural purpose. Hence the Tribunal was of the view that the tractor was used only for agricultural purpose on the ground that construction of a well is incidental to carrying on agricultural activities. It is also further stated by the Tribunal that the Insurance Company has not produced any material or evidence to substantiate that the tractor was used for non-agricultural purpose. The Tribunal correctly came to the conclusion that the tractor was used only for agricultural purpose and no compelling reason stated by the counsel for the appellant to take a different view. After considering these oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the tractor and the tractor was used only for agricultural purpose. The findings are based on valid materials and evidence and it is therefore confirmed.