J.P. Singh, J.
1. This appeal is directed against the award dated 22.3.2003 of Motor Accidents Claims Tribunal, Jammu, whereby claimants have been awarded an amount of Rs. 2,62,328/- (Rupees two lakh sixty two thousand three hundred and twenty eight) along with interest at the rate of 9 per cent per annum as compensation for the death of one Ram Saran. Claimants were the widow, minor daughter and the son of the deceased.
2. The brief facts of the case are that the deceased was travelling on tractor bearing registration No. JK02-R-3990, when it turned turtle near Saharan Morh under the jurisdiction of Police Station Kahana Chak, Jammu, because of the rash and negligent driving of its driver. The claim was contested by the owner and insurer of the tractor.
3. The claims Tribunal raised following issues to decide the rival contentions of the parties raised in their pleadings:
1. Whether an accident took place on 26.3.2003 at Saharan Morh, Jammu due to rash and negligent driving of offending vehicle Chasis No. QWCM 40605004852 and Engine No. 43.1005/OIL 2679 by its driver in which deceased Ram Saran has died? OPP
2. If Issue No. l is proved in affirmative whether petitioners are entitled to the compensation; if so to what amount and from whom? OPP
3. Whether driver of offending vehicle was not holding a valid and effective driving licence at the time of accident? OPR-1
4. Relief. O. P. Parties.
4. The claimants examined Mangal Singh, Mohan Lal besides one of the claimants Bishno Devi, as their witnesses. No evidence was, however, led by the appellant Insurance Company. After appreciating the evidence led by the claimants, the claims Tribunal decided issues Nos. l and 2 in favour of the claimants and issue No. 3 against the insurer of the tractor. Issue No. 3 was decided on the plea that in the absence of any evidence having been led by the Insurance Company, it could not be said that the driver of the offending vehicle was not holding valid and effective driving licence at the time of the accident.
5. It appears that the Insurance Company had raised a plea in their objections that the tractor, the insured vehicle, was not meant to carry passengers and in that view of the matter, the Insurance Company could not be saddled with any liability because the tractor had been driven by the insured against the terms and conditions of the policy.
6. Appellant Insurance Company has come up in appeal mainly on the ground that the tractor was not meant for carrying passengers and was not been used for agricultural purposes when the accident took place.
7. Sh. R. P. Jamwal, learned Counsel appearing for appellant Insurance Company, submits that the tractor is a vehicle which is not meant for carrying passengers. Deceaseds using the tractor as a mode of transport would not, thus, entitle his dependants to claim any relief of compensation from the insurer under the Motor Vehicles Act 1988.
Learned counsel relies on Natwar Parikh and Co. Ltd. v. State of Karnataka and Ors. reported as : AIR2005SC3428 .
8. Sh. S. A. Salaria, learned Senior Advocate appearing for claimants, on the other hand, submits that the Insurance Company having opted not to insist on raising of the issue of tractor having been unauthorisedly used by the deceased, is estopped from raising this plea in the appeal. Alternatively learned Counsel for the claimants relied on a Division Bench judgment of High Court of Punjab and Haryana Chameli and Ors. v. Mukesh and Ors. reported as 2002 ACJ 1344, to urge that Section 2(44) of the Motor Vehicles Act defines the tractor, which in terms of Section 2(28) of the Motor Vehicles Act falls in the definition of motor vehicle and the claim was, thus, maintainable under the Motor Vehicles Act.
9. He further submits that the insurance policy does not prohibit the carrying of persons on the tractor where specific place is earmarked for the persons who are to be carried on the tractor.
I have considered the submissions of the learned Counsel for the parties and gone through the judgments cited by them.
10. It is no-doubt true that Insurance Company appears to have waived the plea raised by it in its objections that the tractor was not being used for agricultural purposes and that it was not meant for carrying passengers and in that view of the matter, no issue appears to have been framed by the Tribunal for settling this plea of the Insurance Company.
11. I had, however, permitted the appellant Insurance Company to raise this plea during the course of hearing of this appeal and learned Counsel were afforded sufficient time to cite case law for and against the proposition. I would, therefore, like to deal with the issue raised by Sh. Jamwal.
12. The Insurance Policy forms part of the records of the Tribunal. Its perusal indicates that the insurer had charged additional amount for covering the risk of two labourers on the tractor.
13. Once the Insurance Company had covered the risk of two persons on the tractor and charged money therefor as additional premium, it may not be open to the Insurance company to wriggle out of its liability to indemnify the owner when the occupier of the tractor in addition to the driver of the tractor suffers injury or death because of the rash and negligent driving of the tractor.
14. No term and condition of the insurance policy has been pressed into service by the appellant to urge that the claim of person sitting on the tractor would not be entertained by the Insurance Company. It is true that a tractor is not meant for carrying passengers. The manufacturers of the tractors have, however, been permitted and authorized by the Authorities to carve out place in the tractors for accommodating labourers/persons on the tractor and it is so, because the use of tractor for agricultural purposes would certainly need persons/helpers/labourers/companions for carrying out agricultural activities.
15. Carrying of persons in the tractor cannot, thus, on any count be held to be in violation of the Insurance policy or the provisions of the Motor Vehicles Act. No provision of the Motor Vehicles Act has been cited by the learned Counsel to support his plea that carriage of persons in the tractor would amount to use of the tractor contrary to any provision in the Motor Vehicles Act or Rules framed thereunder.
16. Though a plea had been raised by the appellant Insurance Company that the tractor was not engaged in any agricultural pursuit yet in the absence of any evidence led by the Insurance Company to prove this fact and any suggestion having been given to the witnesses of the claimants that the tractor was not engaged in any agricultural pursuit on the date of occurrence, it is difficult to accept the plea of the appellant Insurance Company, that the tractor in question was not engaged in any agricultural activity.
17. Judgment cited by Sh. Jamwal, may not be of any help to him because the issue raised in that case pertained to a tractor trailer and not tractor, simplicitor. The judgment of Hon'ble Supreme Court of India may not, thus, be of any help to the learned Counsel for the appellant Insurance Company to canvass that the tractor had been held to be a goods carriage in terms of the judgment.
18. No other issue has been raised by the learned Counsel for the appellant Insurance Company and rightly so because the appellant Insurance Company is not entitled to raise any other plea other than those which are permissible to it under the Motor Vehicles Act.
19. For all what has been said above, I do not find any merit in this appeal, which is, accordingly, dismissed with costs quantified at Rs. 5,000/-(Rupees five thousand).