NATIONAL INSURANCE COMPANY LIMITED Vs. LEELAVTHI

JUDGEMENT

(1.) The appellant has filed this Civil Miscellaneous Appeal against the the judgment and decree passed by the Motor Accident Claims Tribunal, Sub- Court, Valliyoor in M.C.O.P.No.92 of 2008 dated 13.09.2010.

(2.) The facts of the case is that on 28.12003, the deceased engaged one Moorthy from Thiruchencode, the first respondent therein to dig a borewell on his plot at Seelanthikulam. The lorry bearing Reg.No.TN 04 H 1422 was driven by the second respondent therein from Thiruchencode to Seelanthikulam. The lorry was carrying a driller machine for the purpose of borewell on his plot. The driller machine was operated by the first respondent therein.

(3.) The learned counsel appearing for the appellant/insurance company would submit that the Tribunal has failed to note that the accident did not occur while the lorry bearing Reg.No.TN-04-H-1422 was in use, but it is only the borewell machine which was in operation at the time of accident. Further, the Court below failed to note that a steel rod which hit the deceased was used for the drilling operation in the bore well machine and it was not part or machinery of the insured vehicle. Added further, the tribunal failed to note that IMT.No.47 & 52 specifically exclude the liability of the insurer in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto. The said aspect is echoed in a judgment , National Insurance Co.Ltd, Salems Vs Ayyadurai and Others, (2004) 2 TNMAC 47, wherein, in similar circumstances, it is held that the insurer would not be liable to pay compensation. Hence, he prays for setting aside the order made in M.C.O.P.No.92 of 2008 dated 109.2010.