ANIL TUKARAM PATIL Vs. VISHNU TUKARAM SHINDE PATIL

JUDGEMENT

(1.) By this first appeal exception has been taken to judgment and award dated 13.5.1991 passed by the learned member of the Motor Accidents Claims Tribunal at Sangli in a claim petition filed by the respondent Nos. 1 and 2.

(2.) The case of the respondent Nos. 1 and 2, is that their only son Divakar aged about 7 years died in a motor accident on 28.5.1987 at about 7 a.m. involving a tractor and trolley of the appellant. Appellant had brought his tractor along with trolley to the land of respondent No. 1, cousin, Ramchandra Ganpati Patil. The appellant loaded the trolley with manure in the said land and he was proceeding towards the land of Ramchandra Patil. The appellant found that there was a water canal and at that time the water was released through the canal. As it was not possible to take tractor and trolley further as the land near the canal had become damp, according to the case of the respondent Nos. 1 and 2, the appellant halted the tractor for a while and suddenly started it and took it in reverse without looking on rear side to find out whether there was anyone present. Thus, a dash was given to Divakar, the son of the respondent Nos. 1 and 2 and he fell down on the ground and he was run over by the rear wheel of the trolley. He died on the spot. The case of the appellant was that there was no negligence on his part. His case in the written statement is that the land by the side of the canal was ascending. He halted the tractor and while he was thinking as to which way he should adopt, the tractor and trolley slided behind. He noticed that the boy was run over by the trolley only after he heard some persons shouting. His contention is that he was acquitted in prosecution lodged against him.

(3.) The tractor and trolley was admittedly insured with the respondent No. 4. The defence of respondent No. 4 was that there was breach of terms and conditions of the policy inasmuch as per the permit granted to use the tractor, the same could have been used within the State of Karnataka and there was no permit granted to use the vehicle in Maharashtra. The contention was that the appellant committed breach of the terms and conditions of the permit and that is how he has committed breach of the policy conditions. It was also submitted that the policy did not cover the risk arising out of use of tractor for hire.