Liyakat Ali vs Smt. Chunni Devi

Satish Chandra, J.—This appeal is filed u/s 173 of the Motor Vehicles Act, 1988 against the judgment and order dated 27.1.2009, passed by Motor Accident Claims Tribunal, Unnao in Claim Petition No. 117 of 2001 whereby an award of Rs. 1,18,850 was awarded against the appellant.

The brief facts of the case in narrow compass are that on 2.12.2000, one Sri Arvind Kumar was going on scooter to see off his relative. When he reached near Hyderabad Paisara, one Tractor No. U.P. 35B 1649 took a sharp turn. The iron rods loaded in the trolley (trailer) attached to the tractor in question hits the deceased Arvind Kumar, who died on the spot. The F.I.R. was lodged. The tractor was insured but trolley was not insured. So, the liability was fixed against the owner of the tractor, i.e., appellant by the Motor Accident Claims Tribunal for Rs. 1,18.850. Being aggrieved, he filed the present appeal.

During the course of argument, learned Counsel for the appellant submits that the trailer is the part of the tractor and tractor was duly insured. Independently, the tractor or trolley is not of any use. With the tractor, some equipments or trolley will have to be attached for the purpose of agricultural activity. He further submits that trailer/trolley falls within the definition of the vehicles, as such, it is an attachment made to the prime mover of tractor and it has no independent driving system. Therefore, it is not required to be insured under the provisions of Motor Vehicles Act, 1988 and insurance company is liable to pay the compensation.

According to the appellant''s counsel, deceased was driving the scooter without holding any valid licence. He also submits that at the time of accident, the tractor was used to transport the bricks and iron rods for the purpose of construction of pakki boring in a room to secure the boring equipments for irrigation purposes. So, the tractor was used for agricultural purposes. Its driver was having the valid driving licence to drive the tractor and at the time of accident, the tractor was duly insured. So. the liability will have to be fixed against the insurance company. He relied on the ratio laid down in the cases of Nagashetty Vs. United India Insurance Co. Ltd. and Others, and also a judgement in the case of Oriental Insurance Co. Ltd. v. J. Kotiratnama 2000 (3) AWR 91.

On the other hand, learned Counsel for the insurance company submits that the tractor was insured but trolley was not insured. No premium was paid for the trolley as per Section 61 of the Motor Vehicles Act, 1988. He further submits that the tractor was insured only for the purpose of agricultural use but the appellant was carrying the bricks and iron rods in the trolley. So, it is the violation of the terms and conditions of the policy. Again, he repeated that the trolley is not the part of the tractor as no premium for the trolley was paid to the insurance company.

We have heard both the parties at length and gone through the material available on record.

There is no dispute regarding the accident or amount of compensation. The only dispute is that who will pay the compensation, i.e., the owner of the tractor or the insurance company.

In the instant case, the tractor in question (No. U.P. 35B 1649) was duly insured with the insurance company. Admittedly, no separate premium was paid for the trolley. This was the specific defence taken by the insurance company.

The Hon''ble Supreme Court in the case of National Insurance Company v. Chinnamma and Ors. 2004 (3) TAC 577 (SC), defines the meaning of tractor and trailer, which reads as under:

Tractor : ''tractor'' means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of population); but excludes a road roller.

Trailer : trailer means by any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicles.

In the case of Parsottambhai Kanbhai v. Panchiben alias Ratanben 1977 ACJ 441, Hon''ble Gujarat High Court made an observation that "As the trailer is included in the expression motor vehicle, it was required to be insured.

The word ''trailer'' was separately defined from the inclusive definition, which was made. In such an event, the meaning assigned to the respective words has to be culled out. As can be seen from the various definitions like articulated vehicles, contract carriage, goods carriage, heavy goods vehicle, heavy passenger, motor vehicle, invalid carriage, maxi cab, motor cab, motor car, motor cycle, omnibus, private service vehicles, they were defined as motor vehicles including tractor, but the trailer was defined as motor vehicle, which was intended to drawn by a motor vehicle. Thus, it is evident that it is not a mechanically propelled vehicle either power of propulsion is transmitted from external or internal sources. Therefore, even though, Section 2(46) embraces trailer within the definition of ''motor vehicle'' or ''vehicle'', but further distinction has to be drawn between the vehicle and motor vehicle and that distinction has to be carved out on the basis of the specific definition given to the word trailer. Therefore, while all the motor vehicles may fall within the definition of vehicles, but, all the vehicles are not motor vehicles. The trailer as such is an attachment made to the prime mover either a tractor or a mechanical contrivance and it has no independent propulsion. The trailer always is a detachable container, which does not have any independent driving system. Its movements are dependent on the prime mover, such as tractor, motor vehicle etc.

Hence, insurance of trailer is not a mandatory requirement under the provisions of Section 146 of Motor Vehicles Act and if the prime mover/motor vehicle/tractor is insured and the negligence of the driver of the said motor vehicle is established, the compensation is payable by the owner of the tractor and insurer irrespective of the fact whether the victim suffers injury with the tractor or with the trailer. Therefore, we are of the view that in such cases, the insurance company is also liable alongwith the owner of the tractor/trailer to pay compensation.

Further, in the case of United India Insurance Company Ltd. v. Surinder and Ors. 2005 (1) TAC 270 (P&H), it was observed that tractor means a motor vehicle which is not itself constructed to carry any load other than (the equipments used for the purpose) or propulsion but excludes a road roller.

On a perusal of the definition of word ''tractor'' shows that the tractor itself is not able to carry any load without the equipments. Therefore, any equipments attached to the tractor is a part of the tractor and covered under the insurance policy.

In view of the above, we observed that the trailer/trolley, which is attached with the tractor is a part of the tractor, which was duly insured from the insurance company. Hence, the insurance company cannot escape from its liability to pay compensation by taking the plea that the trailer was not separately insured.

But in the instant case, fact remains that at the time of accident, the trolley which was attached with the tractor was carrying the iron rods and bricks for the purpose of construction of a room to cover the pakki boring as admitted by the appellant in paragraph 3 of the affidavit. Transportation of iron rods and bricks is certainly not an agricultural activity. The tractor was insured only for the purpose of agricultural activity. The tractor will have to be used only for agricultural purpose not for any other purpose including the construction of a room. Thus, there is a violation of the terms and conditions of the insurance policy. When it is so, then we are of the view that in the instant case, the insurance company is not liable to pay the compensation and the owner of the tractor will have to pay the compensation.

Hence, we uphold the judgment and order dated 27.1.2009, passed by Motor Accident Claims Tribunal, Unnao in Claim Petition No. 117 of 2001, of course for different reason, as stated above. Since, the quantum is not disputed, the appellant shall deposit the balance amount, if any, before the Motor Accident Claims Tribunal, Unnao within a period of two months. We further direct the registry to transmit the entire amount to the Motor Accident Claims Tribunal, Unnao, and the Tribunal will proceed in terms of the award.

In view of the aforesaid, the appeal is dismissed.