- (1.) The appeal is at the instance of the Insurance Company challenging the liability and quantum. The deceased was travelling in a tractor and when he was alighting from the same he was run over by the tractor. The rashness and negligence of the driver was an established fact and the Insurance Company was made liable.
(2.) On an issue of liability it must be noticed that the tractor is a Light Motor Vehicle and as per the definition under Section 2(44) of the Motor Vehicles Act, 1988 it is not constructed to carry any load other than equipment used for the purpose. A tractor cannot carry any passenger except when a trolley is attached and the persons travelling in the trolley are the load men. In such an event the Insurance Company will provide indemnity for the owner of the tractor. In this case the deceased was a gratuitous travelling in a tractor and there was no compulsion for undertaking the coverage for such a passenger. This point has been specifically dealt with by this Court in New India Assurance Co. Ltd. v. Surinder Kaur, in F.A.O. No. 635 of 2005, decided on 1.9.2010. This judgment has been rendered by making reference to the judgments of the Supreme Court in New India Assurance Co. Ltd. v. Vedwati, 2007 9 SCC 486and National Insurance Co. Ltd. v. Chinamma and others, 2004 8 SCC 697. The Court has also dealt with in paras 2 and 7 the different situations where the labourer travelling in a trolley would have a full insurance cover, unlike an ordinary traveler on the mudguard of the tractor or elsewhere. Having regard to a specific point raised and considered by this court, I do not feel necessary to refer to the other judgments referred by the counsel of Delhi High Court and Andhra Pradesh High Court. I will choose to follow this Court's own ruling by due consideration of the relevant judgments of the Supreme Court and would find the Insurance Company could not have been made liable but liability ought to be only on the owner and driver. The indemnity provided to the owner and driver was erroneous.
(3.) The counsel states that the Insurance Company has already paid a portion of the award having obtained stay in excess of Rs. 3 lacs. The said amount of Rs. 3 lacs would not be required to be refunded by the claimants but the Insurance Company will exercise a right of recovery against the owner and driver.;