GENDALAL Vs. SHANKARLAL

JUDGEMENT

(1.) The appellant-claimant has filed this appeal for enhancement of compensation under section 173 of Motor Vehicles Act against the award dated 15.4.1999 passed in Claim Case No. 5 of 1997 by the IV Member, Motor Accidents Claims Tribunal, Indore, whereby the Tribunal has exonerated the insurance company from its liability and declined to award interest on the amount of compensation, on account of delay by the claimant.

(2.) Admittedly, the incident took place from tractor-trolley Nos. MPI 8837 and MPI 8856. It is also admitted on record that at the time of accident, the vehicle was being driven by one Kailash and was carrying 'baraat'. The learned Tribunal exonerated the insurance company on the ground that the tractor was insured only for agricultural purposes and not for the purposes of carrying 'baraat' or passengers in the trolley. It is also not in dispute that one Kailash s/o Gendalal was a cyclist who was hit by the tractor-trolley and died on the spot, in the said accident. At that time he was aged about 15 years and was the only son of Gendalal, who also died subsequently as a natural death. The claimant Sunderbai is the widow of late Gendalal and the mother of deceased Kailash. The Tribunal has awarded a compensation of Rs. 50,000 against the owner of the tractor and has exonerated the insurance company on the ground of breach of policy and has also not awarded any interest. The Claims Tribunal rejected the evidence of PW 1 Sunderbai to the effect that the deceased boy was working as labourer and was earning Rs. 3,000 to Rs. 5,000 per month. It is also not in dispute that accident took place on 18.4.1988 and the claim petition" was filed on 28.7.1989 and thereafter it remained pending before the Tribunal till passing of final award on 15.4.1999.

(3.) Exh. P-l is the copy of F.I.R., Exh. P-2 is the certified copy of spot map and Exh. P-3 is copy of challan paper. Though nothing has been mentioned in the F.I.R. about carrying of 'baraat' in the trolley but in the petition the claimant himself has stated that at the time of accident tractor was carrying 'baraat' though in the W.S. the owner has denied this fact. The insurance company has also stated that at the time of accident the 'baraat was sitting in the tractor-trolley and a specific objection was taken about the non-liability of the insurance company in view of breach of terms and conditions of the policy. PW 2 Devisingh, the sole eyewitness of the spot has also admitted this fact in his cross- examination that at the time of accident the tractor and trolley was used for carrying 'baraat'. The insurance company has also examined DW 1 Mohd. Zahir Khan on the ground of breach of policy, but there is no dispute that the deceased cyclist was third party and was not travelling in the trolley.