JUDGMENT
Kamlesh Sharma, J.
1. In this appeal, the appellant United India Insurance Co. Ltd. has assailed the award dated 21.8.91 passed by the Motor Accidents Claims Tribunal, Una, whereby the claim petition of the respondents-claimants was allowed and an amount of Rs. 1,17,600 was awarded as compensation along with interest at the rate of 10 per cent per annum from the date of institution of the petition till the date of decision. The liability to pay the compensation amount is fixed on the appellant insurance company.
2. We have heard learned counsel for the parties and gone through the record.
3. Denying its liability the case of the appellant insurance company has been that the vehicle in question was being used for a purpose other than agriculture, which amounts to violation of one of the terms and conditions of the policy of insurance absolving it from any liability under the policy.
4. In order to appreciate this submission we will first examine the pleadings and evidence. In para 22 of the claim petition it is stated that at the time of accident deceased Shamsher Singh was going on his bicycle when the vehicle in question, i.e., tractor No. HIU 784 along with its trolley loaded with shuttering items and being driven rashly and negligently at high speed struck against his bicycle as a result of which the deceased fell down and sustained fatal injuries. Denying these allegations in their reply, the owner and the driver of the vehicle in question alleged that the driver was driving the tractor at normal speed and in the middle of the road, whereas, the deceased was riding the bicycle in an erratic manner on the road which was damaged and was full of pits due to heavy rains, as a result of which he lost his balance while negotiating a pit on the road and struck his bicycle on the hind portion of the tractor-trolley and fell down.
5. The reply to para 22 by appellant insurance company is vague. It has not admitted the para to be correct and has asked respondents-claimants to give strict proof of the allegations made therein. However, in its preliminary objection No. 4 it is stated that, “at the time of accident, the tractor was being used for the purpose other than agriculture, thereby violating the terms and conditions of the policy. This absolves the respondent from all the liabilities”. No specific issue on the defence of the appellant insurance company was framed and the stand of respondents is that issue No. 2 was wide enough to cover the said point.
6. We find that the claimants produced eyewitness Vijay Kumar, PW 3, who stated in his examination-in-chief that shuttering was loaded in the trolley at the time of the accident and in his cross-examination on behalf of the owner and the driver, he had denied the suggestion that tractor-trolley was not loaded. On the other hand, this witness was not cross-examined at all on behalf of the appellant insurance company to find out further details, i.e., what kind of shuttering it was, where was it being carried, whether being carried for hire and reward, etc. Thereafter, Rajinder Kumar, appeared as RW 1 and he has categorically denied the suggestion made to him in the cross-examination conducted on behalf of the appellant insurance company that he was carrying the load of shuttering for the purpose of construction of the house in his tractor-trolley at the time of accident. According to him, he had told his counsel that tractor-trolley was empty and the tractor was being brought to Una for filling the diesel but it was not found mentioned in the reply to the claim petition.
7. Jasbir Singh, RW 2, produced by the owner and the driver has stated that the driver was driving the tractor in question at the time of accident in normal speed and fully supported their stand. He has also denied the suggestion that the tractor was loaded with shuttering which was being brought to Una. It was this witness whose statement was recorded under Section 154, Criminal Procedure Code on the basis of which F.I.R. was registered against the driver of the vehicle in question. At the first instance the appellant insurance company closed its evidence after tendering a copy of the insurance policy but later on moved an application under Order 18, Rules 17 and 17-A, Civil Procedure Code for recalling Jasbir Singh, RW 2 and also for examining Kashmir Singh, ASI, who had recorded the statement of Jasbir Singh under Section 154, Criminal Procedure Code. The application was allowed and the statement of ASI Kashmir Singh, R3W1, was recorded, who produced the original statement of Jasbir Singh under Section 154, Criminal Procedure Code from the file of criminal case and placed the certified copy of statement on record as R3W1/A and the F.I.R. as R3W1/B. Despite opportunities being granted, the appellant insurance company could not produce the witness Jasbir Singh for his further cross-examination and he was ultimately given up by the learned counsel for the appellant insurance company by making statement on 2.9.1991.
8. It is not in dispute that in the insurance policy, Exh. R-l, there was a condition:
Limitations as to use:
Use for agricultural and forestry purposes.
The policy does not cover:
(1) Use for racing, pacemaking, reliability trial or speed testing.
(2) Use for the carriage of passengers for hire or reward.
(3) Use whilst drawing a greater number of trailers in all than is permitted by law.
9. On the basis of these pleadings and evidence, the Tribunal has negatived the stand of the appellant insurance company that at the time of accident the tractor was loaded with shuttering and it was being used for a purpose other than agriculture.
10. We do not find any infirmity in these findings. The averments of the claimants that tractor-trolley was loaded with shuttering items at the time of accident were denied by the owner and the driver of the vehicle in question in their reply-affidavit. On the one hand, the appellant insurance company also denied these allegations but raised the preliminary objection that tractor was being used for a purpose other than agriculture, thereby violating the terms and conditions of the policy without specifying what was the other purpose to which the tractor was being put. The appellant insurance company also failed to give positive evidence that the tractor-trolley was being used for any other purpose than agriculture and was used for carrying shuttering for the construction of building at the time of accident. It has relied upon the statement of Jasbir Singh, RW 2, recorded under Section 154, Criminal Procedure Code wherein he has stated that he was carrying shuttering to Mehatpur in the tractor-trolley at the time of accident and four labourers were also accompanying him for unloading of the said shuttering. Though, the scribe of this statement ASI Kashmir Singh, R3W1, has been produced, but in the absence of putting this statement to Jasbir Singh, RW 2, it cannot be relied upon as he has denied it in his deposition in the court. Moreover, had it been correct, the shuttering would have been recovered along with the tractor-trolley and memo of recovery thereof would have been prepared and the appellant insurance company would have placed the same on record. Despite the permission being granted to appellant insurance company to produce Jasbir Singh, RW 2, for his further cross-examination by allowing its application under Order 18, Rule 17-A, Civil Procedure Code the appellant insurance company gave him up without giving any reason. Assuming that shuttering was being transported at the time of accident, without showing that what kind of shuttering it was, where it was being carried and for what purpose, we cannot hold that mere transportation of shuttering at the time of accident is enough to conclude that the tractor-trolley was not being used for the purpose of agriculture or forestry. Further, it is also not the case of the appellant insurance company that the shuttering was being carried for hire and reward.
11. Therefore, we are in agreement with the findings of the Tribunal that the appellant insurance company has failed to prove its case that the insured has violated one of the conditions of the insurance policy by using the tractor-trolley for any purpose other than agriculture. The judgments cited by the learned counsel for the appellant insurance company in Muthu Thangiah Thevar Rice Mill v. Mariyayee 1997 ACJ 919 (Madras); Oriental Insurance Co. Ltd. v. Dhalu Devi 1998 ACJ 210 (HP) and New India Assurance Co. Ltd. v. Laxmam-ma 2001 ACJ 175 (AP), are on the facts of each case and the ratio thereof has no application to the facts and circumstances of the present case.
In Muthu Thangiah Thevar Rice Mill v. Mariyayee (supra), the insurance company was absolved of its liability by holding that the insured had given the tractor to the Panchayat for a public purpose of taking drinking water on an emergency basis and that too on hire. Similarly, in Oriental Insurance Co. Ltd. v. Dhalu Devi (supra), there was positive evidence that the tractor-trolley was being used for carrying stones for hire and reward. In New India Assurance Co. Ltd. v. Laxmamma (supra), also there was positive evidence on record that the tractor was being used for carrying bricks for the use of the insured. Therefore, the learned Judges in all these three cases had absolved the insurance company by holding that tractor in each case was not being used for the purpose of agriculture.
12. The result of above discussion is that there is no merit in this appeal and it is rejected. There is no order as to costs.
13. In the present appeal of the insurance company the cross-objections of the claimants are not maintainable and are dismissed as such.