JUDGMENT
Abhay Gohil, J.
1. The claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988, against the award passed on 12.4.2002 by Fifth Additional Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 86 of 2001 for enhancement of compensation as well as for setting aside the finding of exonerating the insurance company from its liability as the deceased was travelling on mudguard of tractor.
2. The brief facts of the case are that the deceased Parmal Singh was a young man aged about 25 years. He was a skilled mason. On 9.7.2001 the deceased has gone on tractor No. MP 07-H 9845 for taking sand from Govinda Ghat, Pichhor, on tractor-trolley. While tractor was returning after taking sand between the intervening night of 9/10.7.2001, tractor met with an accident. Tractor was being driven by respondent No. 1, who was driving it rashly and negligently. On the culvert near Chuk-ghai Ki Nariya the said tractor-trolley turned turtle. Parmal Singh came under the vehicle and died. The incident was reported to P.S., Bijora, where crime was registered and charge-sheet was filed. Widow of the deceased and his parents have filed claim petition before Claims Tribunal. Claims Tribunal found that the accident took place due to rash and negligent driving and the deceased died. Tribunal has also recorded a finding that it has not been proved that the driver was having valid driving licence and also found that there is a breach of the conditions of the policy, though awarded compensation of Rs. 1,96,700 against the respondent Nos. 1 and 2, but exonerated the insurance company from its liability. Tribunal considered Exh. D2, which is a carbon copy of the original copy and Exh. D3, which is a certified copy, in which it has been mentioned that the said tractor was insured for agricultural use. Therefore, it was held that the tractor was insured for only agricultural purposes and held that because it was not being used for agricultural purpose and was being used for other than agricultural purpose, therefore, the respondent No. 2 committed a breach of the terms and conditions of the policy and held that insurance company is not liable. His income was considered as Rs. 1,800 p.m. and dependency was considered as Rs. 1,200 p.m. and the multiplier of 13 was applied and awarded the aforesaid compensation, against which the claimants have filed this appeal.
3. We have heard the learned Counsel for the parties and perused the evidence on record. The sole contention of the learned Counsel for the appellants is that the tractor and trolley were being used for agricultural purposes and the sand was being transported for agricultural purpose, therefore, the Tribunal has wrongly exonerated the insurance company and placed reliance on the Division Bench decision of this court in case of National Insurance Co. Ltd. v. Sarvanlal , in which the deceased was travelling in a tractor. Trolley was loaded with dowry goods and the deceased was travelling as member of marriage party in the tractor which has no sitting capacity and it was held that the deceased was travelling as a loader and insurance company is liable. In this case Full Bench decision of this court in the case of Jugal Kishore v. Ramlesh Devi , was considered about the third party risk.
4. In reply Mr. S. Gajendragadkar, the learned Counsel for the respondent No. 3, supported the award and cited various Division Bench decisions of this High Court: Jayraj v. Kaluram ; United India Insurance Co. Ltd. v. Kisnabai 2005 (2) TAC 144; National Insurance Co. Ltd. v. V. Chinnamma and National Insurance Co. Ltd. v. Bommithi Subbhayamma .
5. Mr. Singhal has also filed cross-objection on behalf of respondent Nos. 1 and 2 and submitted that the insurance company is liable to indemnify the claim.
6. After hearing the learned Counsel for the parties we have perused the evidence on record. Chhedaram, PW 1, is the father of the deceased. He has stated in the cross-examination that his son Parmal Singh had gone for taking sand for the construction of house of Brijendra Singh driver. In the cross-examination he has admitted that it is true that his son had not taken the tractor for the use of agricultural purposes. Dar-bari, PW 2, is the brother of the deceased Parmal. He has also stated in the cross-examination that it is true that his brother had not gone on the tractor for any agricultural work. There were no goods and implements in the tractor for the purposes of agriculture. Omprakash, PW 3, is the co-mason. He was examined to prove the income of the deceased and he has stated that as a mason he is receiving Rs. 100 to Rs. 150 per day as wages and Parmal also used to earn the same amount. Ramswarup, PW 4, is the eyewitness. He has stated that Brijendra Singh was driving the tractor-trolley very fast and because of that the same was turned turtle and Parmal was sitting on the tractor. The trolley was full of sand. In cross-examination he has admitted that Parmal Singh was sitting over the mudguard of the tractor. Mithlesh, PW 5, is the wife of the deceased. She has also admitted that her husband had gone to take the sand in tractor-trolley. In defence B.K. Menon, DW 1, was examined on behalf of the insurance company. He was working as Assistant Administrative Officer in the insurance company. He has produced the office copy of the insurance policy, which was for agricultural use and the vehicle was not insured for any other purposes except the agricultural use. In the F.I.R. also it has been mentioned that deceased had gone along with Brijendra Singh for taking sand from the Govinda Ghat and when he was coming back, tractor met with an accident. From the aforesaid evidence, it is clear that the vehicle was insured for agricultural use only and it was not insured for any purposes other than agricultural use and from the evidence of the claimants it is also clear that at the relevant time the said tractor-trolley was not being used for agricultural purpose. Claimants witnesses have admitted that it was being used for bringing the sand for the construction of the house of Brijendra and even the sand was not being transported for agricultural purposes. In the case of National Insurance Co. Ltd. v. V. Chinnamma , Supreme Court has considered the various other decisions on the subject and also considered the effect of amendment of 1994 in the Motor Vehicles Act and in the case of National Insurance Co. Ltd. v. Baljit Kaur and also the decision in the case of New India Assurance Co. Ltd. v. Asha Rani , according to the aforesaid decision a trailer attached to the tractor is required to be used for agricultural purposes, unless registered otherwise and an owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of 1994 amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. In the case of National Insurance Co. Ltd. v. Bommithi Subbhayamma , Hon’ble Apex Court again affirmed the same legal position:
(8) …It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.
7. Thus, from the aforesaid evidence on record, it is clear that the tractor was insured for agricultural purpose and at the relevant time the same was not being used for agricultural purposes. It is not the case of the appellants that the owner or his representative was travelling on the vehicle along with the goods. Therefore, from the aforesaid discussion it is clear that the insurance company is not liable for payment of any compensation as the liability of the deceased is not covered under the policy and more so it is not the case of third party risk as the deceased was not third party.
8. We have also considered the case for enhancement of compensation as against the owner and driver of the vehicle. It appears that on the basis of the evidence on record and on the basis of facts and circumstances of the case, the Tribunal has rightly considered monthly income as well as dependency and has rightly calculated the amount of compensation. We also do not find any ground for enhancement of compensation. Accordingly, this appeal as well as cross-objections filed by respondent Nos. 1 and 2 being devoid of any merit and substance are hereby dismissed. In view of the above, parties are directed to bear their own costs.