MITHIESH Vs. BRIJENDRA SINGH BAGHEI

JUDGEMENT

(1.) The claimants have filed this appeal under section 173 of the Motor Vehicles Act, 1988, against the award passed on 12,4.2002 by Fifth Additional Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 86 of 2001 for enhancement of compensation as well as for setting aside the finding of exonerating the insurance company from its liability as the deceased was travelling on mudguard of tractor.

(2.) The brief facts of the case are that the deceased Parmal Singh was a young man aged about 25 years. He was a skilled mason. On 9.7.2001 the deceased has gone on' tractor No. MP 07-H 9845 for taking sand from Govinda Ghat, Pichhor, on tractor-trolley. While tractor was returning after taking sand between the intervening night of 9/10.7.2001, tractor met with an accident. Tractor was being driven by respondent No. 1, who was driving it rashly and negligently. On the culvert near Chuk- ghai Ki Nariya the said tractor-trolley turned turtle. Parmal Singh came under the vehicle and died. The incident was reported to P.S., Bijora, where crime was registered and charge-sheet was filed. Widow of the deceased and his parents have filed claim petition before Claims Tribunal. Claims Tribunal found that the accident took place due to rash and negligent driving and the deceased died. Tribunal has also recorded a finding that it has not been proved that the driver was having valid driving licence and also found that there is a breach of the conditions of the policy, though awarded compensation of Rs. 1,96,700 against the respondent Nos. 1 and 2, but exonerated the insurance company from its liability. Tribunal considered Exh. D2, which is a carbon copy of the original copy and Exh. D3, which is a certified copy, in which it has been mentioned that the said tractor was insured for agricultural use. Therefore, it was held that the tractor was insured for only agricultural purposes and held that because it was not being used for agricultural purpose and was being used for other than agricultural purpose, therefore, the respondent No. 2 committed a breach of the terms and conditions of the policy and held that insurance company is not liable. His income was considered as Rs. 1,800 p.m. and dependency was considered as Rs. 1,200 p.m. and the multiplier of 13 was applied and awarded the aforesaid compensation, against which the claimants have filed this appeal.

(3.) We have heard the learned counsel for the parties and perused the evidence on record. The sole contention of the learned counsel for the appellants is that the tractor and trolley were being used for agricultural purposes and the sand was being transported for agricultural purpose, therefore, the Tribunal has wrongly exonerated the insurance company and placed reliance on the Division Bench decision of this court in case of National Insurance Co. Ltd. v. Sarvanlal, 2005 ACJ 1401 (MP), in which the deceased was travelling in a tractor. Trolley was loaded with dowry goods and the deceased was travelling as member of marriage party in the tractor which has no sitting capacity and it was held that the deceased was travelling as a loader and insurance company is liable. In this case Full Bench decision of this court in the case of Jugal Kishore v. Ramlesh Devi, 2004 ACJ 297 (MP), was considered about the third party risk.