H.K.RATHOD, J. - (1.)HEARD learned Advocate Mr. Anal S. Shah for appellant - Oriental Insurance Company Ltd. and learned Advocate Mr. Paresh M. Darji for respondent No. 1 claimant.
(2.)BY filing this appeal, appellant insurance company is challenging award passed by Mact, Ahmedabad in MAC Petition No. 766 of 2001 Exh.59 dated 8.9.2008, awarded Rs. 4,38,904.00 with 9 per cent interest being compensation in favour of respondent claimant.
Learned Advocate Mr. Shah for appellant has raised contention before this Court that claimant was traveling in trolley which was not insured with appellant insurance company and tractor was insured for agricultural purpose having Kisan Package Policy Exh. 46, therefore, if tractor has been used by owner for any purpose other than agricultural purpose, then, it amounts to breach of condition of policy of insurance and, therefore, insurance company is not liable to pay compensation. He also submitted that on date of accident, claimant was taking iron rolls which was not agricultural product and thus tractor was being used for purpose other than agriculture which was not permitted as per policy, therefore, insurance company is not liable to pay compensation to claimants. He also raised contention that trolley has been attached with tractor, therefore, owner has altered vehicle. He also raised contention that driver of tractor was not having legal and valid licence. He relied upon definition of 'motor vehicle' or 'vehicle' under Section 2 sub Section (28). He also referred to definition of 'tractor' under Section 2(44) and definition of 'trailer' under Section 2 (46). He relied upon decision of Apex Court in case of Oriental Insurance Company Ltd. vs. Brij Mohan & Others, (2007) 7 SCC 56 where laborer was travelling on trolley of tractor carrying earth to brick kiln, he being merely a passenger, it was held that his claim was not maintainable. He relied upon Head Note (B) which is relating to Section 147 of Act. Deviation from purpose for which vehicle was insured was considered and effect thereof was also considered. Claim petitioner being labourer injured while travelling in trolley attached to tractor carrying earth to brick kiln. But neither was tractor trolley insured in addition to tractor nor was tractor being used for 'agricultural works', only purpose for which tractor was insured when appellant received injuries. Therefore, it was held that claim was not maintainable. Learned Advocate Mr. Anal Shah submitted that trolley was not insured and claimant was travelling in trolley and, therefore, insurance company is not liable. He relied upon second decision in case of National Insurance Co. Ltd. vs. Cholleti Bharatamma and Others, (2008) 1 SCC 423 wherein Apex Court considered Section 147 of MV Act, goods carriage, liability in respect of owner of goods or his authorized representative. Apex Court also considered person(s) who can be covered as 'owner or his authorized representative' and necessity of determination of mode of travel and number of person(s) so covered. Owner, if must travel only in cabin of vehicle and not with goods so as to be covered under Section 147. It was held that it is necessary to show that deceased was traveling in lorry along with driver or cleaner as owner of goods. It was also held that traveling with goods itself does not entitle anyone to protection under Section 147. He also relied upon observations made by Apex Court relating to Paras 8 to 11 and also observations made by Apex Court in Para 17, 19 and 20. Head note in aforesaid decision has been elaborately discussed by apex Court. He relied upon decision in case of National Insurance Co. Ltd. vs. V. Chinnamma and Others, (2004) 8 SCC 697. Section 147(1)(b) before its amendment in 1994 and Section 2(14) & (44) were considered. Liability of insurer to pay compensation under Section 147 in cases of death of, or bodily injury to, owner of goods or his authorized representative carried in a goods vehicle was considered. Deceased was travelling in trailer of tractor which was carrying goods belonging to him, en route to purchase further goods. Deceased being injured and dying therefore, due to rash and negligent driving of driver of tractor - Whether said tractor fitted with trailer if 'goods vehicle' under Section 2(14), held, may or may not answer said definition. Considering that accident had taken place before 14.11.1994, date of coming into effect of 1994 amendment to Section 147, following Asha Rani case, (2003) 2 SCC 223, it was held that insurance company was not liable. Accident occurred on 24.11.1991, therefore, observations made by Apex Court considered Section 147 prior to its amendment on 14.11.1994. This aspect has been clarified by Apex Court in Para 16 of judgment which is quoted as under:

"16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (Supra) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment."

(3.)EXCEPT that, no other decision has been cited by learned Advocate Mr. Anal Shah before this Court. He also argued before this Court in respect of merits while referring to page 9 where Tribunal has considered income Exh. 35, wage slip. He submitted that wage slip of October was produced on record at Exh. 35 where claimant worked only for four days and he was not a permanent employee but he was daily wager and, therefore, assessment made by claims Tribunal at Rs. 2500.00 is without any cogent evidence and, therefore, this finding is required to be set aside by this Court. He also raised contention before this Court that contention was raised by appellant in its written statement at Exh. 17 that trolley was not insured but that aspect has not been considered by claims Tribunal while deciding matter. Except that, no other submission has been made by learned Advocate Mr. Shah before this Court.