PANWAR, J. - (1.) THIS appeal is directed against the judgment and award dated 16. 06. 1993 passed by learned Motor Accident Claims Tribunal, Rajsamand (hereinafter referred to as `the Tribunal') in Motor Accident Claim Case No. 106/1989, whereby the Tribunal awarded compensation of Rs. 1,00,000/- (rupees one lac) in favour of respondent-claimants No. 1 to 4 (for short `the claimants') and against respondents No. 5 and 6 and appellant National Insurance Company Limited (for short `the insurer' ). Aggrieved by the judgment and award of the Tribunal, the appellant insurer has filed this appeal.
(2.) I have heard learned counsel for the parties and perused the judgment and award impugned. Three separate claim petitions were filed by legal representatives of deceased Legal representatives of deceased Bhagwanlal filed MAC Case No. 106/1989, legal representatives of deceased Manjur Hussian filed MAC Case No. 107/1989 and legal representatives of deceased Bhanwarlal filed MAC No. 108/1989. The Tribunal awarded compensation in favour of legal representatives of deceased by as common judgment impugned. The insurer had filed three separate appeals, including one in hand. S. B. Civil Misc. Appeal No. 351/1993, which was filed against the judgment and decree in MAC Case No. 108/1989 came to be dismissed by this Court on 19. 03. 2001. S. B. Civil Misc. Appeal No. 355/1993 filed by the insurer against the judgment and award in MAC Case No. 107/1989 was also dismissed by this Court on 19. 03. 2001. Learned counsel for the appellant does not dispute the disposal of two appeals arising out of the common judgment. Learned counsel for the appellant contended that vehicle involved in the accident was a tractor attached with trolley, which was insured with the appellant insurer on the relevant date of the accident for the purpose of agriculture use but the said tractor was used for transporting stones and, therefore, the said tractor was used in breach of conditions of the policy and the Tribunal fell in error in holding the appellant insurer liable for the compensation. It was next contended by learned counsel for the appellant that the deceased person was not a third party. In National Insurance Company Ltd. vs. Faqir Chand and Others (1) and in New India Assurance Company Ltd. vs. Riaz Mohammed and others (2), Jammu and Kashmir High Court and Madhya Pradesh High Court have held that the insurer is the first party and the insured is the second party, other than two, every person is a third party. Learned counsel for the respondent claimants contended that from the evidence, it is established that the said tractor involved in the accident was used for agricultural purposes and on the relevant date of the accident, it was carrying stones for construction of boundary wall of agricultural field of the owner of the tractor and, therefore, the tractor was being used for agricultural purposes and, therefore, there is no violation of conditions of the policy. He contended that the appellant insurer can take defence as provided in sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 (for short, `the Act') and no more. He further contended that there is no such defence available to the appellant insurer under sub-section (2) of Section 149 of the Act restricting use of vehicle by incorporating any condition beyond what is provided under the aforesaid provisions. He relied on judgments of this Court in Ram Deo and another vs. Geeta Devi & Ors. (3) and Badri Narain & Ors. vs. Chotu Ram & Ors.
(3.) I have carefully through the judgments cited at the Bar. In Ram Deo's case (supra), the vehicle involved in the accident was a tractor, which was transporting bags of grain on the relevant date of the accident and the deceased person was, accompanying those bags of grain. The said tractor met with the accident and the person accompanying, succumbed to the injuries. The Tribunal awarded compensation in favour of the legal representatives of the deceased therein. This Court held that the tractor- was carrying grain bags and was used for agricultural purposes as it was transporting the agricultural produce and its transportation is for agricultural purposes. In the instant case, there is ample evidence on record and the witnesses categorically deposed that at the relevant time the tractor was transporting stones for the construction of boundary wall of the agricultural field of the owner of the tractor. Therefore, it cannot be said that the tractor was used for any other purpose. Moreso, sub-section (2) of Section 149 of the Act does not provide any restriction with regard to use of vehicle and, therefore, the appellant insurer cannot be permitted to incorporate any other condition than the defences available to it under sub-section (2) of Section 149 of the Act. In Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan and others (5), the Hon'ble Supreme Court held as under: " The defence built on the exclusion clause cannot succeed for three reasons, viz: (1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of section 96, the condition excluding driving by a person not duly licensed is not absolute and the promissor is absolved once it is shown that he has done everything in his power to keep, honour, and fulfil the promise and he himself is not guilty of a deliberate breach. (2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver. (3) The exclusion clause has to be `read down' in order that it is not at war with the `main purpose' of the provisions enacted for the protection of victims of accidents so that the promissor is exculpated when he does everything in his power to keep the promise. " ;