Kesar Enterprises Baheri vs Mausami Lal & Others

By all means of this appeal, the judgment and order dated 28.01.2014 has been assailed, whereby the learned Tribunal has granted the award of Rs. 2,75,000/- along with 6% interest from the date of institution of the petition till the payment is actually made and the liability to satisfy the award has been fastened upon the appellant- Kesar Enterprises Baheri, District Bareilly, which was the owner of the offending vehicle Truck No. UP-25A-H-9853 being plied attached with the trailer (trolley) and carrying the sugarcane thereon. It was being driven by the paid employee of the company namely Shri Arjun Prasad.

The accident occurred on 28.12.2010 at 3:00 PM by such tractor trailer which in the territorial limits of Tehsil Kichha (District Udham Singh Nagar) ran over the eight years old child namely Vishal. On account of this accident Master Vishal breathed his last on the spot. He was studying in third standard in some school. So, his parents instituted the claim petition no. 25/2011 seeking the compensation of Rupees eight lakhs, whereagainst, the amount has been awarded as indicated above.

Accident and the insurance cover is not disputed. The appellant has agitated the fastening of the liability on the ground that the tractor was being used to transport the agricultural produce, wherefor the tractor is meant for, hence, there was no violation of any terms and conditions of the policy. Therefore, the insurer should be made liable to pay the compensation.

The learned counsel on behalf of the appellant has relied the law laid down by the three Judge Bench of the Hon''ble Apex Court '' Fahim Ahmad and Others vs. United India Insurance Company Limited and Others '' reported in (2014) 14 SCC 148 where the accident occurred with a tractor attached with a trolley. Such tractor was being plied at a very high speed in a rash and negligent manner hit the deceased 49 years old, from behind, causing death on sport. The Hon''ble Supreme Court was of the view that at the relevant time the trolley was being used to transport the sand for the construction of the underground tank near farm land for irrigation purpose (s) hence, merely for the reason that it was being used for carrying the sand would not mean that the tractor was being used for commercial purpose and consequently, there was a breach of the condition of policy on the part of the insured. The Hon''ble Court expressed the view that there is nothing on record to show that a tractor was being used for commercial (s) purpose or purposes other than agriculture purpose(s) i.e. for hire or reward, as contemplated under Section 149(2)(a)(i)(a) of the said Act.

Although in that case also the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor was any evidence led to prove the same. In absence of any such evidence, it cannot be presumed that there was breach of the condition of the policy. Thus, there was no reason to fasten the said liability

of payment of the amount of compensation awarded by the Tribunal on the owners of the vehicle.

In my considered view, the law laid down by the Hon''ble Apex Court is not applicable in the present controversy for the simple reason that appellant-owner of the Tractor was carrying the sand in the trailer for the purpose of construction of the underground tank, to be used for irrigation purpose(s) of his farm land. So, in that way, the nature of using the trailer, although by carrying the sand, was determined to be agricultural in nature.

In the case in hand, the sugarcane filled trailer was not used by any farmer for the purpose of carrying his agricultural produce to sell in the market but, prima-facie, it appears that the sugarcane had been purchased from the farm land of the farmer itself and after purchase of this sugarcane, it was being transported by the Kesar Enterprises Public Ltd. Company for the purpose of being further used to manufacture either the sugar or otherwise, which was to be sold at commercial price for the purpose of profit/gain to the company.

That apart, the burden was upon the appellant to produce any of his responsible officers in the witness box to prove otherwise and it has not been done so. After producing the joint written statement by the appellant alongwith its driver Shri Arjun Prasad, they did not appear any further before the learned Trial Judge so that the Insurance Company could have an opportunity to cross- examine any of them on the question of nature of the transportation.

In view of what has been set forth above, I find there is no force in this appeal. It is hereby dismissed.

LCR be sent back.