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Reserved
Case :- FIRST APPEAL FROM ORDER No. - 600 of 2009
Petitioner :- Liyakat Ali
Respondent :- Smt Chunni Devi
Petitioner Counsel :- Rajeev Kr. Sinha
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Hon'ble Devi Prasad Singh,J.
Hon’ble Dr. Satish Chandra,J.
(Delivered by Hon’ble Dr. Satish Chandra, J)
This appeal is filed under Section 173 of the Motor Vehicles Act, 1988
against the judgment and order dated 27.01.2009 passed by Motor Accident
Claims Tribunal, Unnao in Claim Petition No. 117 of 2001 whereby an award
of Rs.1,18,850/- was awarded against the appellant.
The brief facts of the case in narrow compass are that on 02.12.2000,
one Sri Arvind Kumar was going on scooter to see off his relative. When he
reached near Hyderabad Paisara, one Tractor No. U.P. 35-B 1649 took a
sharp turn. The Iron Rods loaded in the trolley (trailer) attached to the tractor
in question hits the deceased Arvind Kumar, who died on the spot. The FIR
was lodged. The Tractor was insured but trolley was not insured. So, the
liability was fixed against the owner of the Tractor i.e. appellant by the Motor
Accident Claims Tribunal for Rs.1,18,850/-. Being aggrieved, he filed the
present appeal.
During the course of argument, learned counsel for the appellant
submits that the trailer is the part of the tractor and tractor was duly insured.
Independently, the tractor or trolley is not of any use. With the tractor, some
equipments or trolley will have to be attached for the purpose of agricultural
activity. He further submits that trailer/trolley falls within the definition of the
vehicles, as such, it is an attachment made to the prime mover of tractor
and it has no independent driving system. Therefore, it is not required to be
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insured under the provisions of Motor Vehicles Act, 1988 and insurance
company is liable to pay the compensation.
According to the appellant’s counsel, deceased was driving the
scooter without holding any valid license. He also submits that at the time of
accident, the tractor was used to transport the bricks and iron rods for the
purpose of construction of Pakki Boring in a room to secure the boring
equipments for irrigation purposes. So, the tractor was used for agricultural
purposes. Its driver was having the valid driving license to drive the tractor
and at the time of accident, the tractor was duly insured. So, the liability will
have to be fixed against the insurance company. He relied on the ratio laid
down in the cases of Nagashetty v. United India Insurance Company
Ltd.; 2001 A.C.J. 1441; 2001 (3) T.A.C. 511 and also a judgement in
the case of Oriental Insurance Co. Ltd. v. J. Kotiratnama, 2000 (3) An.
W.R. 91.
On the other hand, learned counsel for the insurance company
submits that the tractor was insured but trolley was not insured. No premium
was paid for the trolley as per Section 61 of the Motor Vehicles Act, 1988.
He further submits that the tractor was insured only for the purpose of
agricultural use but the appellant was carrying the bricks and iron rods in the
trolley. So, it is the violation of the terms and conditions of the policy. Again,
he repeated that the trolley is not the part of the tractor as no premium for
the trolley was paid to the insurance company.
We have heard both the parties at length and gone through the
material available on record.
There is no dispute regarding the accident or amount of
compensation. The only dispute is that who will pay the compensation i.e.
the owner of the tractor or the insurance company.
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In the instant case, the tractor in question (No. U.P. 35-B 1649) was
duly insured with the insurance company. Admittedly, no separate premium
was paid for the trolley. This was the specific defense taken by the
insurance company.
The Hon’ble Supreme Court in the case of National Insurance
Company v. Chinnamma and others; 2004 (3) TAC 577 SC defines the
meaning of tractor and trailer, which reads as under:
“Tractor: ‘tractor’ means a motor vehicle which is not
itself constructed to carry any load (other than
equipment used for the purpose of population); but
excludes a road roller.
Trailer: trailer means by any vehicle, other than a
semi-trailer and a side-car, drawn or intended to be
drawn by a motor vehicles.”
In the case of Parsottambhai Kanbhai v. Panchiben alias
Ratanben, 1977 A.C.J. 441 Hon’ble Gujarat High Court made an
observation that “As the trailer is included in the expression motor
vehicle, it was required to be insured.
The word ‘trailer’ was separately defined from the inclusive definition,
which was made. In such an event, the meaning assigned to the respective
words has to be culled out. As can be seen from the various definitions like
articulated vehicles, contract carriage, goods carriage, heavy goods
vehicle, heavy passenger, motor vehicle, invalid carriage, maxi cab, motor
cab, motor car, motor cycle, omnibus, private service vehicles, they were
defined as motor vehicles including tractor, but the trailer was defined as
motor vehicle, which was intended to drawn by a motor vehicle. Thus, it is
evident that it is not a mechanically propelled vehicle either power of
propulsion is transmitted from external or internal sources. Therefore, even
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though, Section 2 (46) embraces trailer within the definition of ‘motor vehicle’
or ‘vehicle’, but further distinction has to be drawn between the vehicle and
motor vehicle and that distinction has to be carved out on the basis of the
specific definition given to the word trailer. Therefore, while all the motor
vehicles may fall within the definition of vehicles, but, all the vehicles are not
motor vehicles. The trailer as such is an attachment made to the prime
mover either a tractor or a mechanical contrivance and it has no
independent propulsion. The trailer always is a detachable container, which
does not have any independent driving system. Its movements are
dependent on the prime mover, such as tractor, motor vehicle etc.
Hence, insurance of trailer is not a mandatory requirement under the
provisions of Section 146 of Motor Vehicles Act and if the prime
mover/motor vehicle/tractor is insured and the negligence of the driver of the
said motor vehicle is established, the compensation is payable by the owner
of the tractor and insurer irrespective of the fact whether the victim suffers
injury with the tractor or with the trailer. Therefore, we are of the view that in
such cases, the insurance company is also liable along with the owner of
the tractor/trailer to pay compensation.
Further, in the case of United India Insurance Company Ltd. v.
Surinder and others; 2005 (1) TAC 270 (P&H), it was observed that
tractor means a motor vehicle which is not itself constructed to carry any
load other than (the equipments used for the purpose) or propulsion but
excludes a road roller.
On a perusal of the definition of word ‘tractor’ shows that the tractor
itself is not able to carry any load without the equipments. Therefore, any
equipments attached to the tractor is a part of the tractor and covered under
the insurance policy.
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In view of the above, we observed that the trailer/trolley, which is
attached with the tractor is a part of the tractor, which was duly insured from
the insurance company. Hence, the insurance company cannot escape from
its liability to pay compensation by taking the plea that the trailer was not
separately insured.
But in the instant case, fact remains that at the time of accident, the
trolley which was attached with the tractor was carrying the Iron Rods and
Bricks for the purpose of construction of a room to cover the pakki boring as
admitted by the appellant in paragraph-3 of the affidavit. Transportation of
iron rods and bricks is certainly not an agricultural activity. The tractor was
insured only for the purpose of agricultural activity. The tractor will have to
be used only for agricultural purpose not for any other purpose including the
construction of a room. Thus, there is a violation of the terms and conditions
of the insurance policy. When it is so, then we are of the view that in the
instant case, the insurance company is not liable to pay the compensation
and the owner of the tractor will have to pay the compensation.
Hence, we uphold the judgment and order dated 27.01.2009 passed
by Motor Accident Claims Tribunal, Unnao in Claim Petition No. 117 of 2001,
of course for different reason, as stated above. Since, the quantum is not
disputed, the appellant shall deposit the balance amount, if any, before the
Motor Accident Claims Tribunal, Unnao within a period of two months. We
further direct the registry to transmit the entire amount to the Motor Accident
Claims Tribunal, Unnao, and the Tribunal will proceed in terms of the award.
In view of the aforesaid, the appeal is dismissed.
Order Date :-16.07.2010
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