Allahabad High Court
Deepak Verma And Another vs Ram Dhari And Ors. on 21 January, 2013
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 19 of 2010 Petitioner :- Deepak Verma And Another Respondent :- Ram Dhari And Ors. Petitioner Counsel :- Rajendra Jaiswal,Santosh Kumar Kanaujia Hon'ble Devi Prasad Singh,J.
Hon'ble Dr. Satish Chandra,J.
1. Heard Shri Rajendra Jaiswal learned counsel for the appellant and Shri Santosh Kumar Kanaujia learned counsel for the respondent.
2. In spite of service of notice, none appeared for the Insurance Company. Accordingly, we proceed to decide the present appeal after hearing the learned counsel for the parties.
3. This is an appeal under Section 173 of the Motor Vehicle Act against the impugned award dated 6.10.2009 passed by the Motor Accident Claims Tribunal/District Judge, Lakhimpur Kheri in Motor Accident Claim case No. 221 of 2007.
4. On 10.10.2007 at about 8.00 am, a Tractor trolley bearing no. UP 31 E-1267 loaded with sand, hit the cycle of Deceased Kuldeep aged about 12 years. In consequence thereof, Kuldeep succumbed to injuries sustained by him. The injury was caused because of overturn of trolley. The claimant approached the Tribunal for compensation. Tribunal had allowed the claim petition and shifted the liability for payment of compensation on the owner of the tractor.
5. The Tribunal had framed four issues as under:-
i) Whether on 10.10.2007 at about 8.00 am in the morning near Marora School, Police Station Phoolvaher, District Kheri Tractor no. UP 31 E 1267 driven by respondent no. 1 rashly and negligently hit the cycle of Kuldeep causing grievous injury, in consequence thereof kuldeep succumb to it during the course of treatment.
ii) Whether vehicle was insured by the respondent Insurance company.
iii) Whether the driver of the tractor was having valid driving licence.
iv) What relief or compensation the claimants are entitled.
6. The Tribunal recorded a finding that the driver of the Tractor was having valid driving licence. However, it has been held that the vehicle was used for commercial purpose, hence, compensation should be paid by owner not by the Insurer.
7. During the course of trial, on behalf of claimant, PW1 Ramdhar and PW2 Anil Yadav were appeared. Out of two witnesses Shri Anil Yadav PW2 is an eye-witness. On behalf of defendant, DW1 Deepak Verma was appeared representing the owner. The tribunal was impressed from the fact that the tractor was insured for agricultural purposes but during the course of accident, it was found that the trolley was loaded with sand. On behalf of owner, it was pleaded before the tribunal that trolley loaded with sand was going to grove land for construction of room to keep the agricultural equipments and other agricultural items. It was pleaded on behalf of the owner that tractor and trolley was used for agricultural purpose. Instead of believing the defence setup by the owner of the tractor, the tribunal noted that the tractor was not going to the village of the owner rather to some other village Belihan. Finding recorded by the Tribunal seems to be perverse for the reason that the overwhelming evidence on record reveals that the tractor-trolley loaded with sand was going to a grove land situated at Fatehpur falling in the same way. The owner stated that because of damaged road the tractor was going through Belihan. No evidence was seems to led by respondents Insurance company. Construction of room to keep the agricultural equipment is the part and parcel of agricultural work.
8. Admittedly, tractor was registered for agricultural purpose. The owner of the tractor have right to use the tractor to construct room to keep the agricultural equipments. Using the tractor to carry sand and other material for construction of room or to keep agricultural equipments cannot held to be commercial purpose. The Tractor registered for agricultural means not only carry out maneuver, fertilizers or agriculture produce but it shall cover all related works necessary for agriculturist to keep on their work. There cannot be straight jacket formula to interpret the word "agricultural purpose.". So many work done by agriculturist during the course of their agricultural work requires engagement of tractor or trolley, shall deem to be agricultural purpose. It shall depend upon the facts and circumstances of each case. It cannot be held to be commercial. There appears to be no evidence on record that the sand loaded in the trolley was delivered by the owner to some other person on payment of rent. In the absence of any evidence led by the Insurance Company that the sand loaded over by the trolley was for some other person on payment of rent, no presumption could have been raised by the Tribunal to record a finding that the tractor was used for commercial purpose. Ordinarily commercial purpose means use of tractor and trolley for profit earning providing the facility to others.
9. In view of the above, finding recorded by the tribunal seems to be perverse. Accordingly, we allow the appeal and modify the impugned award to the extent that the appellant owner shall not be responsible to pay compensation. Respondent-Insurance Company shall liable to pay compensation in terms of award (respondent no.4) The tribunal shall proceed to recover the compensation from the respondent no. 4 Insurance company expeditiously, say within a period of six months from the date of receipt of a certified copy of this order and release the same to the claimant in terms of award.
10. Appeal is allowed accordingly. Amount deposited in this court shall be remitted to tribunal forthwith. Appellant-owner shall be entitled to claim the refund, if any.
No order as to costs.
Order Date :- 21.1.2013 Madhu