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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6220 OF 2008

FAHIM AHMAD & ORS. ... APPELLANTS

VERSUS

UNITED INDIA INSURANCE CO. LTD. & ORS. ...RESPONDENTS

J U D G M E N T

N.V. RAMANA,J.

1.The  short  question,  which  arises  for  

consideration  in  this  appeal,  is  who  is  

liable  to  pay  the  amount  of  compensation  

awarded  by  the  Motor  Accident  Claims  

Tribunal, Udham Singh Nagar (for short, ‘the  

Tribunal’) in M.A.C.P. No. 98/2003 vide Award  

dated 06.08.2004.   

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2.Brief  facts  of  the  case  are  thus  :  On  

06.03.2003,  the  deceased  Atma  Singh,  the  

husband of appellant -

3.No. 1 and the father of appellants No. 2 and  

3 herein, was going from Kashipur crossing  

towards Tada Ujjain.  When he reached the  

Station Road in front of godown, suddenly one  

tractor having registration No. UP-21-H-4596  

coming  at  a  high  speed  in  a  rash  and  

negligent  manner  hit  the  deceased  from  

behind,  as  a  result  of  which,  he  became  

seriously  injured  and  died  on  the  spot.  

Thus,  the  appellants-claimants  claimed  

compensation  of  Rs.5,00,000/-  and  averred  

that the deceased was 49 years’ old having  

monthly income of Rs.4,600/- (Rs.3,600/- from  

mason  work  and  Rs.1,000/-  from  selling  of  

milk  of  2–3  buffaloes).   The  Tribunal  

assessed the annual income of the deceased at  

Rs.24,000/-  and  applying  the  multiplier  of  

13, awarded the compensation of Rs.3,12,000/-  

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with interest.  However, the Tribunal held  

the Insurance Company, i.e., respondent No. 1  

herein, liable to pay the said compensation  

because the tractor was insured with it as  

per rule at the time of the accident.  

4.Against the award of the Tribunal, the appeal  

filed under Section 173 of the Motor Vehicles  

Act,  1988  (for  short,  ‘the  said  Act’)  

registered as A.O. No. 425 of 2004 in the  

High  Court  of  Uttranchal  at  Nainital  was  

partly allowed on 18.05.2006 to the extent  

that the amount of compensation so awarded by  

the Tribunal shall be paid by the insurance  

company, but it shall have a right to recover  

the  same  from  the  owner  of  the  offending  

tractor as there was breach of condition of  

the  insurance  policy.   This  was  so  held  

because  at  the  time  of  the  accident,  the  

tractor  was  carrying  sand.   It  is  this  

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decision,  which  has  been  assailed  in  the  

present appeal.  

5.We have heard arguments advanced by learned  

counsel  for  the  parties  and  perused  the  

records.  

6.A perusal of the records shows that, at the  

time of the accident, a trolley was attached  

with the tractor, which was carrying sand for  

the purpose -

7.of construction of underground tank near the  

farm  land  for  irrigation  purpose(s).  

However, merely because it was carrying 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.  There is nothing  

on record to show that the tractor was being  

used for commercial purpose(s) or purpose(s)  

other than agricultural purpose(s), i.e., for  

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hire or reward, as contemplated under Section  

149(2)(a)(i)(a) of the said Act.   

8.Although the plea of breach of the conditions  

of policy was raised before the Tribunal, yet  

neither any issue was framed nor any evidence  

led to prove the same.  In our opinion, it  

was mandatory for respondent No. 1-Insurance  

Company not only to plead the said breach,  

but also substantiate the same by adducing  

positive evidence in respect of the same.  In  

the absence of any such evidence, it cannot  

be presumed that -

9.there was breach of the conditions of policy.  

Thus, there was no reason to fasten the said  

liability  of  payment  of  the  amount  of  

compensation awarded by the Tribunal on the  

appellants herein.   

10. We may also notice that this Court in  

National Insurance Co. Ltd. Vs. V. Chinnamma  

&  Ors.,  JT  2004  (7)  SC  167,  held  that  

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carriage  of  vegetables  being  agricultural  

produce would lead to an inference that the  

tractor  was  being  used  for  agricultural  

purposes, but the same itself would not be  

construed  to  mean  that  the  tractor  and  

trailer can be used for carriage of goods by  

another person for his business activities.  

Thus, a tractor fitted with a trailer may or  

may  not  answer  the  definition  of  ‘goods  

carriage’ contained in Section 2(14) of the  

said Act.    

11. In  view  of  above,  we  are  of  the  view  

that, in the facts and circumstances of the  

case, the High Court was not justified in  

transferring the -

12. burden  of  paying  the  amount  of  

compensation from respondent No. 1-Insurance  

Company to the appellants herein.   

13. We,  thus,  allow  the  appeal.  

Accordingly,  the  impugned  judgment  dated  

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18.05.2006 is set aside, in so far as the  

right to recover the amount awarded from the  

owner of the tractor.  No orders as to costs.  

 ..............C.J.I.        (P. Sathasivam)

  ..................J.                                  (Ranjan Gogoi)

..................J.    (N.V. Ramana)

New Delhi; March 25, 2014.

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