ORDER
U.C. Maheshwari, J.
1. This appeal is directed under Section 173 of the Motor Vehicles Act (for short `the Act) by the appellants/claimants being aggrieved by the award dated 25.9.96 passed by the Additional Motor Accident Claims Tribunal Multai in Claim Case No. 4/92 dismissing their claim regarding compensation for the death of their predecessor Nago Rao in a vehicular accident.
2. As per the averments of the claim petition, the predecessor of the appellants Nago Rao had an agricultural field at village Sandiya Tehsil Multai. The respondent No. 1, being dealer of respondent No. 2, the manufacturer of tractor and power trillers, was marketing and selling the aforesaid tractor and the power triller. On dated 7.9.91, at about 9-10 O’ Clock in the morning, on behalf of respondent No. 2, respondent No. 1 organized a demonstration of their product Mitsubishi power triller of 12 HP having Chasis No. C.T.8530/82 and Engine No. T.W.H.9497 at the field of Nago Rao. The villagers were also invited to such field in whose presence, firstly, respondent No. 1 drove such triller and thereafter he asked to Nago Rao to drive the same but he refused to drive. Again, on insistence and motivation given to him by respondent No. 1, without any instructions for driving the same, the deceased Nago Rao drove the said triller. During such driving, due to negligence of respondent No. 1 in giving proper instructions to him, he could not properly drive the same and met an accident, in which his leg came into the contact of some part of it and due to such injury and hemorrhage, he succumbed to such injuries during treatment. The deceased was the earning member of the family of the appellants. On his untimely death, they have been deprived from the dependency. Such accident took place because of the negligence of the respondent. The deceased was 32 years of the age and was earning Rs. 1500/-per month from the business of repairing of Motor pump, Radio, Fan, Watch etc. With these pleadings, the claim was preferred for the compensation of Rs. 4,40,000/- and interest.
3. In reply of the respondents, the manufacturing of the triller and tractor by respondent No. 2 and its marketing through respondent No. 1 as dealer has been admitted in it but they denied the other averments of the claim petition. They also denied any negligence on their part. In addition, it was pleaded that deceased Nago Rao himself was responsible for such accident as no negligence was committed by respondent No. 1. It is also stated that such power triller is not covered under the definition of Motor Vehicle as defined under the Act. In special pleadings, it was pleaded that such power triller was purchased by Naththu S/o Uchit Thakur, resident of said village and on the date of the incident when respondent No. 1 reached to such village than various villagers 150-200 in number, were assembled in front of the house of said Naththu. The Nago Rao was also there. After obtaining the consent of Nago Rao, Naththu Thakur requested respondent No. 1 to show demonstration of such power triller at the field of Nago Rao, then respondent No. 1, in presence of the villagers with the help of his servants, demonstrated the work of such triller at such field. Subsequent to it, after switching it off, it was stationed. Thereafter, when he was giving some instructions to the villagers regarding such triller, meanwhile Nago Rao went to the triller,however started it without any knowledge and consent of respondent No. 1 and when his leg was involved in such triller, he cried. Then respondents and other persons were run and tried to rescue him. Accordingly, respondent No. 1, did not commit any negligence. Thus, no liability can be saddled against any of the respondents. He also pleaded that in connection of it, a case under Section 304A of the IPC was registered, investigated by the police and he was charge-sheeted in the Court of JMFC Multai but by the judgment dated 25.9.95, he has been acquitted by such Court.
4. After framing the issues, recording the evidence, on appreciation of the same by holding that such vehicle was not covered by the definition of the Motor Vehicle Act and the incident was not the cause of any negligence committed by the respondent No. 1, the tribunal dismissed the claim of the appellants but all other issues were decided in favour of the appellants. Being aggrieved by it, the appellants have come forward with this appeal.
5. Shri N.P.Dubey, learned Counsel for the appellants by referring the definition `Motor vehicle’ defined under Section 2(28) along with some other provisions of the Act , said that such power triller was fully covered by such definition as the same was based on chassis and operated by the engine and it was driven by a person through handle. Although, it was prepared for agricultural purposes and did not had four wheels but it could be plied on road by its two wheels. Its engine capacity was more than 25 cubic centimeter. Firstly, he said that the tribunal has wrongly held that such power triller was not covered by the Act. In addition, he said that deceased Nago Rao being illiterate villager and agriculturist was not aware about the operation and driving of such power triller. Even on asking, he denied to drive the same during such demonstration but on being insisted by the respondent No. 1, he drove the same. The respondent No. 1 was duty bound to instruct properly to the deceased before handing-over such triller to him but he did not do so and in that way, he committed negligence in handing-over such power triller to the deceased for driving and in such driving, Nago Rao sustained injuries and died. In such circumstances, the respondents were liable to indemnify the liability towards the claimants but with wrong approach, the tribunal held that no negligence was committed by the respondent No. 1. Such finding is also not sustainable and prayed awarding their claim by setting aside the impugned award.
6. Shri L.N.Sankle and A. Tiwari, learned Counsel for the respondents while responding the aforesaid arguments justified the impugned award and said that in any case the alleged power triller was not covered under the definition of Motor Vehicle, hence, the claim under the Act was not tenable, hence the tribunal has not committed any error in holding the same. He further said that as per the available evidence the incident took place because of own negligence of the deceased as the triller was driven by him without instructions and consent of respondent No. 1, therefore, the approach of the tribunal in this regard is also correct. According to him, the impugned award does not require any interference at this stage.
7. Having heard, I have carefully examined the record and the evidence led by the parties and also the concerned provisions of the Act. I am of the considered view that the tribunal has committed an error in holding, that the alleged power triller was not covered by the definition of Motor Vehicle Act and that the incident was not the consequence of any negligence on the part of respondent No. 1.
8. Coming to the first question whether such power triller was covered under the definition of the Motor Vehicle provided under the Act. As per the deposition of respondent No. 1 Kamal Kumar Soni (DW 1), he took the Agency for selling and marketing the aforesaid triller in such area from its manufacturer respondent No. 2. He also accepted that alleged demonstration was made by him at the field of deceased Nago Rao in presence of the villagers. In para-9 of his cross- examination, he categorically stated that such power triller had two wheels and Engine of 12 HP and operated with diesel fuel. It does not require any training to drive the same. In para-10 of his cross-examination, he could not disclose the weight of the triller and the capacity of its engine whether it had 1000 cubic centimeter or not. Accordingly, he could not explain the exact cubic centimeter of such engine. In para-12, he stated that it had a stand like Scooter or by-cycle on which the same was stationed. It was taken to such field through road by operating through its engine. He also said that it was driven by handle.
9. In view of the aforesaid deposition of respondent No. 1, it has been revealed that such power triller had two wheels, operated by diesel engine and driven by handle and was fit to ply on road also. Although as per said deposition, it did not require any licence to drive the same or registration with the authority.
10. In the light of aforesaid description of the triller, the Court has to see whether it was covered under the definition of Motor Vehicle defined under Section 2(28) of the Act which reads as under:
Motor vehicle or vehicle means any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimeters.
According to it, the said power triller, was covered with this definition as the respondents have failed to prove the exact cubic centimeter of it whether it was more than 25 cubic centimeter or less. Looking to the 12 HP diesel engine in it certainly, it had the engine of more than 25 cubic centimeter, and was mechanically propelled vehicle adopted for use upon roads also as discussed in aforesaid para-8.
Besides the above, this power triller was also covered by the definition of Motor Cycle as defined under Section 2(27) of the Act which reads as under : Motor cycle means a two-wheeled motor vehicle, inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle.
According to this definition, it includes the two wheels motor vehicle and admittedly said power triller had two wheels and as per the evidence same was taken to such field through road by its operating system. Accordingly, it was a vehicle or motor vehicle and was fully covered under the aforesaid definitions. Therefore, the approach of the tribunal holding the alleged triller was neither the motor vehicle nor covered by the Act, are not sustainable. Hence by setting aside the same, it is held that it was a vehicle or motor-vehicle covered by the Act.
11. Coming to consider the another question regarding negligence of the respondents. The claimant No. 1 Kusum (A.W.1) the wife of the deceased is not the eye-witness of the incident as she was not present at the time of the incident on the spot but the other villagers Sudama (AW 2), Shankar (AW 3) and Praksh (AW 4) categorically stated that on asking by the respondent No. 1, deceased denied to drive the same but on insisting and giving motivation by respondent No. 1, he drove the same but before handing-over the triller to deceased, he was not properly instructed by respondent No. 1 regarding the operative system of it and due to such negligence, such incident was happened.
12. I have also perused the evidence led on behalf of the respondents. Respondent No. 1 Kamal Kumar Soni (DW 1) deposed that the alleged triller was sold to Naththu and at his instance the demonstration was carried out. Regarding such sale transaction, not a single document was neither produced nor proved by the respondents, on the contrary, such triller after seizure by the police was taken by the respondent No. 1 in his interim custody from the concerned court of judicial magistrate as stated by this witness. The non-examination of Naththu also gives circumstance to draw adverse inference against the respondents in this regard. As per further averments, he admitted the alleged demonstration and also sustaining the injuries by the deceased by such triller. But he tried to say that deceased drove the triller without his instruction and consent and sustained the injuries and he did not commit any negligence. It was the negligence of only deceased. The other witnesses of respondents, Amrit Rao (DW 2) and Waman Rao Barde (DW 3) supported the testimony of Kamal Kumar on the question that deceased drove the triller without consent of the respondent No. 1. They stated that deceased sustained injuries because of his own negligence while driving such triller. Accordingly it is revealed from these witnesses that the alleged incident was happened during the course of aforesaid demonstration. It does not appear natural that in presence of various villagers and respondent No. 1 the triller, was driven by the deceased without consent of respondent No. 1.
13. After going through the aforesaid evidence, it is crystal clear that respondent No. 1 alone was not responsible for the incident. As per evidence, the dealer and marketing agent of respondent No. 2, he organized such demonstration in which without giving any instruction regarding it’s operating system he insisted to deceased Nago Rao and on such driving by the deceased, the alleged incident was happened. Accordingly, respondent No. 1 committed negligence in not giving the proper instruction to deceased regading it’s operating system before handing- over to him for driving. Simultaneously, deceased also committed negligence that he without having knowledge of it’s operating system only on motivation and insistence of respondent No. 1, drove the triller. Thus, this case appears to be a case of contributory negligence of respondent No. 1 and the deceased both.
14. The demonstration of triller and sustaining the injuries by Nago Rao by such power triller, are admitted by respondent No. 1 in his deposition. Therefore, the respondents cannot avoid their liability to indemnify such claim till the extent of their negligence. Although, the deceased himself drove the same without knowing the operative system of such triller only at the instance and motivation of respondent No. 1. Thus, he was also equally responsible for committing the negligence. Accordingly, it was a case of contributory negligence and the same is hereby held.
15. Now, the question comes that such incident took place in the agricultural field of the deceased and not on the road. In such situation the private field of the deceased could be treated as Public Place defined under Section 2(34) of the Act. Section 2(34) of the Act reads as under:
Public place means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picket up or set down by a stage carriage.
According to it, the place where the public has a right to access is also included and it is not in dispute that on the aforesaid date demonstration was carried out by respondent No. 1 on behalf of respondent No. 2 in presence of the villagers in such field who assembled to see such demonstration on such field, therefore, for such period, it was the Public Place although it was a private property. In this regard, the case decided by the division bench of this Court in the matter of Smt. Hirabai and Ors. v. Pratap Singh and Anr. is relevant, in which it was held as under:
9. The obtaining factual matrix is to be tested on the anvil of the aforesaid pronouncements of law. The Tribunal has recorded the finding that the driver was proceeding towards the public road and at that juncture the accident had occurred at the public place. As has been held in the aforesaid decisions that the public place does not necessarily mean that it must be the public property. As is evincible from th evidence on record though the place was not a public road but the public had the right to access to the same. There is no testimony that the public was debarred to enter into the said road. Keeping in view the connotative expanse of the term public place. In our considered opinion, the view expressed by the tribunal is indefensible and accordingly we dislodge the same.
16. Therefore, it is held that alleged incident took place at the Public Place while demonstrating the alleged triller the motor-vehicle which is covered under the Act and it was the case of contributory negligence of the deceased and the respondents both.
17. The quantum of compensation and other issues of the case have already been decided by the Tribunal in favour of the appellants/claimants. The same have not been challenged by the respondents and nothing was argued on behalf of the appellants for enhancement of such compensation. In such situation, the findings of the tribunal in respect of such other issues are hereby affirmed.
18. Therefore, this appeal is allowed in part and by holding that the alleged triller being covered under the Motor Vehicles Act the claim was rightly filed by the appellants in tribunal and the case is held to be a case of contributory negligence of the respondents and the deceased, for which both were equally liable. In pursuance of it, the liability to indemnify half of the sum (i.e. 50%) as assessed by the tribunal in the impugned award is saddled against the respondents jointly and severally. Till this extent, the findings of the impugned award are modified by setting aside the existing findings while the other findings of it are hereby affirmed. The respondents are directed to pay the aforesaid sum to the appellants/claimants within sixty days from today with interest at the rate of 6% p.a from the date of initiation of the claim i.e.8.4.1992, failing which respondents shall pay interest at the rate of 9% p.a. There shall be no order as to costs. The appeal is allowed in part as indicated above.