V.K.GUPTA,C.J. - (1.)In this appeal filed by the Insurer of the vehicle involved in the accident under Section 173 of the Motor Vehicles Act, 1988, the appellant -Insure has challenged the judgment and award dated 11th October, 1993 passed by the learned Motor Accident Claims Tribunal -II Solan, camp at Nalagarh in MAC Petition No. 23 -NL/2 of A990. Mrs. Sharma, teamed Counsel appearing for the appellant has submitted that the impugned judgment and award suffers from two errors of law and on account of these two errors the appellant -Insurer should have been absolved from its liability to pay the award amount. The first contention against the award is that the Tractor involved in the accident was being plied for a purpose other than for which it was insured, namely, for agricultural and forestry purposes. Her second contention is that deceased Gita Ram was travelling as a gratuitous passenger in the Tractor at the time of the accident and the accident having occurred prior to year 1994, the Insurer is not liable to pay the compensation amount if it relates to the death of a gratuitous passenger being carried in a vehicle other than a passenger vehicle.
(2.)In so far as the first ground of attack is concerned, whether the Tractor in question was insured by the Insurance Company for a limited purpose of its being used for agricultural land forestry purposes or not, and whether it was being used for a purpose other than any of the aforesaid purposes (the case set up by the parties before the Tribunal was that it was carrying bricks at the time of the accident), the fact remains that the Insurance Company has limited defences available to it in terms of Section 149(2) of the Motor Vehicles Act, 1988 and the aforesaid, therefore, is not a valid defence in the eye of law available to the Insurance Company. In a recent judgment of this Court delivered on 10th September, 2004 in FAO (MVA) No. 404 of 2001 National Insurance Co. v. Smt. Reena Devi and others, along with various other identical cases, interpreting the true scope of Section 149(2) of the Motor Vehicles Act, 1988, this Court has clearly held that unless the defences or any one of them, fall squarely within the aforesaid provision of law an Insurer is not entitled to absolve itself of its liability to pay the award amount. This case is squarely covered by the ratio in the aforesaid judgment. The first ground of attack accordingly is rejected.
(3.)In so far as the second ground of attack is concerned, the evidence on record clearly points out that the deceased was travelling in the vehicle not as a passenger (arid, therefore, not at all as a gratuitous passenger) but he was travelling in the capacity of a labourer to load and unload the bricks. It was immaterial as to who had engaged him for this purpose. The unimpeachable evidence on record clearly suggests that he was not travelling as a gratuitous passenger but was travelling as a labourer. That being the case the Insurance Company cannot be permitted to absolve itself of its liability to pay. The reliance placed by Mrs. Sharma on a recent judgment of the Supreme Court in the case of National Insurance Co. Ltd. v. Chinnamma and others, reported in JT 2004(7) SC 167, is distinguishable as far as the facts of this case are concerned, because in the aforesaid Supreme Court case the deceased was travelling in the vehicle in question as a gratuitous passenger and since the accident had occurred prior to the amendment in the year 1994, the Insurance Company was not held liable to indemnify.