KISHORE Vs. SHAHID SHAH

JUDGEMENT

(1.) Being aggrieved by the award dated 27-1-2005 passed by MACT, Neemuch in Claim Case No. 51/2002, whereby claim petition filed by the Appellant was allowed and compensation of Rs. 2,90,000/- was awarded and Respondent No. 2 was exonerated, present appeal has been filed.

(2.) Short facts of the case are that Appellant filed a claim petition alleging that Respondent No. 1 owned a tractor bearing registration No. MPN-7627, which is insured with Respondent No. 2. It was alleged that on 17-10-99 Respondent No. 1 brought his tractor to the field of Appellant, which was attached with thresher for the purpose of cutting Soyabean crop lying in the field of Appellant. It was alleged that while the thresher was in operation because of mechanical fault right leg of the Appellant was crushed from the joint of thigh and ultimately it was amputated. It was alleged that the accident occurred due to negligence on the part of Respondent No. 1. It was prayed that petition be allowed and compensation be awarded. The claim petition was contested by the Respondents by filing separate written statement. In the written statement filed by Respondent No. 1 it was denied that the accident occurred in which Appellant sustained injuries. Liability of Respondent No. 1 was denied. In the written statement filed by Respondent No. 2 it was alleged that thresher is not a part of the motor vehicle. It was alleged that Respondent No. 1 was not possessing valid driving licence and also offending thresher was not insured with Respondent No. 2, hence Respondent No. 2 was not liable for the alleged accident. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded compensation of Rs. 2,90,000/- and exonerated the Respondent No. 2, break-up of amount awarded is as under: <FRM>JUDGEMENT_196_MPHT1_2011_1.html</FRM>

(3.) Learned Counsel for the Appellant argued at length and submits that impugned award passed by the learned Tribunal is illegal, incorrect and deserves to be set aside. It is submitted that since the offending tractor was insured and the thresher was being operated with the help of tractor, which was insured with Respondent No. 2, therefore, Respondents are liable to pay compensation. For this contention reliance is placed on a decision in the matter of United India Insurance Co. Ltd. v. Smt. Anandi Devi,2009 3 ACC 1753, wherein deceased sustained injuries in working on thresher machine and the thresher machine was operated by tractor, which was insured for agricultural purpose, this Court held that deceased being a third party in the accident, therefore, liability of Insurance Company covered with regard to payment of compensation. Further reliance is placed on a decision in the matter of United India Insurance Co. Ltd. v. Sardari Lal, 2006 ACJ 943, wherein tractor used for propelling wheat thresher and the labourer woman was collecting wheat grain under the thresher when the driver started the tractor, thresher came in motion and the woman got wrapped with the belt resulting in her death, Himachal Pradesh High Court held that accident arose out of use of tractor. It was also observed that tractor is not being plied on the road does not necessarily mean that an accident had not occurred arising out of the use of motor vehicle. Reliance is also placed on a decision in the matter of Oriental Insurance Co. Ltd. v. Savthanji Khodaji Thakor, 2008 ACJ 2486, wherein Insurance Company sought to avoid liability on the ground that tractor was insured but not the thresher a Division Bench of Gujarat High Court held that Insurance Company is liable for payment of compensation. Reliance was also placed on a decision in the matter of P. Muse Khan v. M. Gopala Krishnaiah, 2004 ACJ 1306, wherein accident caused by a lorry during the course of drilling in agricultural fields resulting in death of the deceased, Andhra Pradesh High Court held that the Insurance Company is liable for payment of compensation. On the strength of aforesaid decisions, Learned Counsel for the Appellant submits that learned Tribunal committed error in exonerating Respondent No. 2. So far as amount of compensation is concerned, Learned Counsel submits that in a case where leg was amputated from the joint, it is a case of 100% permanent disability. In the matter of United India Insurance Co. Ltd. v. Rajendra,2010 ACC 444, wherein claimant was aged 21 years and right hand was amputated the compensation awarded by the Tribunal Rs. 2,06,000/- was enhanced by this Court to Rs. 2,75,000/-. In this case, accident occurred when claimant while operating thresher fitted with tractor was insured, in the circumstances this Court further held that Insurance Company cannot avoid the liability to pay compensation. It is submitted that appeal filed by the Appellant be allowed and the findings relating to exoneration be set aside and the amount be enhanced.