RAMBAI Vs. SANJU

JUDGEMENT

(1.) THIS order shall govern disposal of M.A. No. 57/08 and M.A. No. 3664/07 (Shri Gendalal and others v. United India Insurance Company & others). M.A. No. 57/08 has been filed by the claimant for enhancement as well as to assail the finding of the liability to pay the compensation against the owner and driver, exonerating the Insurance Company; while in M.A. No. 3664/07 the owner and driver have come to challenge the award assailing the liability fastened on them exonerating the Company from such payment.

(2.) THE facts in brief are that the son of claimants Kailash aged 10 years was sitting in a tractor trolley bearing No. MP-11/M-3499 and MP- 11/M-4672 respectively. The tractor trolley was being used for carrying the bricks for construction of a house to put agricultural produce or goods in the field on one Tirkhiya where in deceased was sitting as labourer. It was driven rashly and negligently; however, turn turtled. Accordingly, claimants' son Kailash died, Claim petition was filed seeking compensation to the tune of Rs. 5,00,000/-. Respondents No. 1 & 2 have I filed their reply with specific plea that the tractor was used for construction of a house in the field of Tikhiya, who is near relative, without taking any remuneration for hire. The said construction was being done in the field of Tikhiya to put the agricultural produce and goods; however, there is no violation of the terms and conditions of the Insurance policy. Once the tractor trolley was insured with the Company, the liability, if any fastened, ought to have been indemnified on the Company and the payment of compensation must be directed against them.

(3.) SHRI Abhayankar and Shri Laad, learned counsel appearing on behalf of the claimants as well as the owner and driver have argued with vehemence that the finding as recorded by the Claims Tribunal is not in conformity with the facts as well as on law. The Tribunal while recording such finding has not come across to the entire testimony of PW 2 Jaising and merely reading part of the testimony of such witness finding has been recorded. It is further argued that as per the statement of DW 1 J.P. Soni it is apparent that the witness of the Insurance Company has not made it clear that what was the purpose of agricultural use; however, in absence of specification of agricultural purpose and in view of the statement of PW 2 Jaising it is clear that a house was being constructed in the field of Tikhiya to put the agricultural produces and goods therein. Thus, on joint reading of statement of PW 2 Jaising and DW 1, J.P. Soni it is apparent that the tractor trolley was being used for the agricultural purposes, therefore, the liability for payment of compensation ought to have been fasten against the Company and not against the owner. Reliance has been placed on a DB judgment of this Court in the case of Narendra Singh v. Govend and another whereby this Court has directed to pay the compensation against the Insurance Company when the construction was being raised for the use of agricultural purpose, wherein tractor was loaded with bricks for the construction. In that view, it is argued that the finding as recorded by the Claims Tribunal exonerating the Insurance Company may be ordered to be set aside and the respondent Company may be directed to pay compensation indemnifying the liability. In the alternative Shri Abhyankar, counsel appearing for the claimants appellants has made a prayer that at least the compensation which is awarded may be directed to be paid by the Company with a right to recovery from the owner to them.