UNITED INDIA INSURANCE CO LTD Vs. CHHANIYA

JUDGEMENT

(1.) Both these miscellaneous appeals are arising out of common award dated 21.8.2006 passed by Motor Accidents Claims Tribunal, Sheopurkalan in Case No. 11 of 2006, whereby learned Tribunal awarded a sum of Rs. 2,71,800 as compensation to the respondent Nos, 1 to 5 and exonerated the insurance company and directed the insurance company to pay the amount of award and recover the same from the owner of the vehicle, i.e., respondent No. 7.

(2.) Other findings pertaining to the involvement of the vehicle and date of accident and policy of the insurance company is not under challenge.

(3.) It is submitted by the learned counsel for the appellant that on 5.2.2006, deceased Siyaram was going towards village Dhodhar from village Raji Ka Dera, Bagdiya and was sitting on the mudguard of the tractor bearing registration No. MP 06-JA 1998. The tractor was driven by the respondent No. 6 very rashly and negligently and due to the aforesaid reason the vehicle overturned on the side of the road and Siyaram died on the spot. As per insurance policy, Exh. P10, the tractor is registered for agricultural purpose whereas at the time of accident tractor was found being used other than for agricultural purpose and, therefore, the insurance company is not liable to indemnify the insured. In support of the said contention, he drew my attention to paras 12 to 14 of the award and submitted that learned Tribunal after appreciating the oral and documentary evidence has held that as per statement of Dara Singh, AW 2, the deceased was travelling and was sitting on the mudguard of the tractor and, therefore, in view of the law laid down by the Apex Court in the case of National Insurance Co. Ltd. v. Botnmithi Subbhayamma, 2005 ACJ 721 (SC), the insurance company is not liable to indemnify the insured and Tribunal committed error in directing the insurance company to pay the amount of compensation and recover the same from the owner of the vehicle. The learned counsel for the appellant submits that this finding is contrary to the law laid down by the Apex Court as well as by this court. He further submitted that once it is found that vehicle was driven contrary to the terms and conditions of the policy then insurance company is not liable to pay the amount of compensation and direction made by the learned Tribunal in para 22 of the impugned award is contrary to the decision of the Apex Court.