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Judgment
Hariparanthaman, J.—The appellant is the insurance company. One Pitchai owned an agricultural tractor bearing registration No. TN 72-Z 2135 and also agricultural trailer bearing registration No. TN 72-Z 2136. One Muthu was the driver of tractor-cum-trailer. Muthu drove the tractor-cum-trailer on 5.7.1999 in Sathiyamoorthy Nagar near Samayanalloor and while crossing the unmanned level crossing of the railway lines near Power House, a train coming from Chennai dashed against the tractor-cum-trailer. At that time, one load-man Mahalingam was on the trailer. Further, the owner of the tractor Pitchai was also on the trailer and all the three persons died due to the accident. The legal heirs of Muthu filed W.C. No. 428 of 1999, claiming compensation for the death of Muthu due to the accident that arose out of and in the course of employment. The respondent Nos. 1 to 4 in the appeal were the claimants and the respondent Nos. 5 to 8 herein are the legal heirs of Pitchai under whom Muthu was employed.
Before Commissioner for Workmen''s Compensation, the respondent No. 1 was examined as PW 1 and documents Exhs. A1 to A6 were marked. The respondent No. 5 herein who was the respondent No. 2 in W.C. No. 428 of 1999 was examined as RW 1. One Thuraipandian, the investigator appointed by the appellant, was examined as R6W1 and P.L. Murugappan, officer of the appellant, was examined as R6W2 and documents Exh. R6/1 to Exh. R6/4 were marked. Further, the court witness Joseph Xavier, an employee in the Regional Transport Office, Tirunelveli was examined. Based on evidence, both oral and documentary, learned Commissioner passed an order dated 4.4.2003, awarding Rs. 2,20,950 as compensation. The appeal is against the said order.
Heard Mr. M. Ramarathnam, learned counsel for appellant, and Mr. V. Nagendran, learned counsel for the respondent Nos. 1 to 4, and there is no representation on behalf of respondent Nos. 5 to 8.
The learned counsel for the appellant submits that as per the insurance policy, Exh. R6/4, the tractor-cum-trailer should be used exclusively for agricultural and forest purposes. But, according to him, it was used for taking the mutton for some marriage celebrations in the family of the respondent Nos. 5 to 8 and that, therefore, the appellant insurance company is not liable to pay compensation.
Secondly, it is submitted that the driver of the tractor-cum-trailer did not have valid driving licence to drive the tractor-cum-trailer. According to him, the driver possessed driving licence only to drive the light motor vehicle and he did not possess licence to drive heavy motor vehicle.
On the other hand, learned counsel for respondent Nos. 1 to 4 submits that it was an agricultural tractor and the trailer was an agricultural trailer. The same was not a transport vehicle. He has brought to my notice the notification u/s 41 (4) of the Motor Vehicles Act, classifying the transport vehicles and non-transport vehicles. According to him, the agricultural tractors and trailers are not mentioned as transport vehicles. Only in the case of transport vehicles, the issuance of permit u/s 66 of the Motor Vehicles Act is necessary. Therefore, the appellant is not correct in saying that the tractor took mutton contrary to the permit conditions, since the tractor and trailer were admittedly used for agricultural purposes and the same were not transport vehicles. The learned counsel has brought to my notice section 149 (2) (a) (i) (c) in this regard. The learned counsel also relies on a judgment of this court in United India Insurance Co. Ltd. Vs. A. Victoria and Others, in this regard.
In reply to the argument relating to the driving licence, the learned counsel submits that the agricultural tractor-cum-trailer weighs less than 7500 kg and that therefore, it was classified as light motor vehicle u/s 2 (21) of the Motor Vehicles Act. He relies on the deposition of court witness, an employee of the Regional Transport Office, Tirunelveli and submits that unladen weight of the tractor is less than 6000 kg and possession of licence to drive light motor vehicle is sufficient to drive the tractor-cum-trailer. It is further submitted that licence of the driver was endorsed to drive transport vehicle. He has brought to my notice the driving licence marked as Exh. A3 in this regard.
I have considered the submissions made by the learned counsel appearing for either side and perused the records.
Section 149 (2) (a) (i) (c) that is relevant for the purpose of this case is extracted hereunder:
Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.--
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(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle--
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(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle.
As per the aforesaid section under Motor Vehicles Act, 1988, the insurance company could defend the action on the ground that the vehicle owner violated the condition of policy by using the vehicle for the purpose not allowed by the permit issued to the vehicle. The aforesaid section makes it clear that the issuance of permit would apply in the case of transport vehicle. Section 149 (2) (a) (i) (c) itself refers to transport vehicle. Hence, it has to be ascertained as to whether the agricultural tractor-cum-trailer is a transport vehicle or not.
Learned counsel for the respondent Nos. 1 to 4 has brought to my notice the notification issued u/s 41 (4) of the Motor Vehicles Act, giving the list of transport vehicles and non-transport vehicles. The agricultural tractor and agricultural trailer are not shown as transport vehicles.
In fact, agricultural tractor and agricultural trailer are defined under rule 2 (b) and 2 (c) of the Central Motor Vehicles Rules, 1989 respectively. As per rule 2 (b) of the Central Motor Vehicles Rules, agricultural tractor is defined as follows:
Definitions.--
(b) ''agricultural tractor'' means any mechanically propelled 4-wheel vehicle designed to work with suitable implements for various field operations and/or trailers to transport the agricultural materials. Agricultural tractor is a non-transport vehicle.
(Emphasis added)
As per rule 2 (c) of the Central Motor Vehicles Rules, the agricultural trailer is defined as follows:
(c) ''agricultural trailer'' means a trailer generally left uncovered with single/double axle construction which is coupled to an agricultural tractor by means of two hooks and predominantly used for transporting agricultural materials.
Since the tractor and trailer were used for agricultural purposes as admitted by the learned counsel for the appellant, the tractor and trailer could not be termed as a transport vehicle.
If it is not a transport vehicle, then, the defence available u/s 149 (2) (a) (i) (c) is not available to the appellant insurance company.
Therefore, even if mutton is taken by the owner of the vehicle for the marriage celebration in their family, it is not prohibited, if it is not a transport vehicle. In fact, an attempt was made by the owner of the vehicle by letting in evidence that sand was also carried in the trailer. Even assuming that mutton was taken in the trailer, there is no prohibition for taking mutton if it is not a transport vehicle. Since I came to a conclusion that the agricultural tractor-cum-trailer is not a transport vehicle, as per the notification issued u/s 41 (4) of the Motor Vehicles Act, there is no requirement to have the permit for such a type of vehicle and, therefore, the appellant insurance company could not complain of violation of policy condition stating that the vehicle was used for the purpose other than the one that is authorised in the permit.
Learned counsel for the respondent Nos. 1 to 4 relies upon the judgment in United India Insurance Co. Ltd. Vs. A. Victoria and Others, ) and in the said decision, it is held that there is no restriction for the tractor and trailer used for agricultural purpose for carrying materials other than for agricultural purpose. Para 30 of the said judgment is extracted hereunder:
(30) As we have seen above, the carrying of a different goods is not a condition contemplated by section 96 (2) of the Motor Vehicles Act. Therefore, the insurance company cannot rely upon such a breach taking advantage of the fact that the insured has accepted the condition. In several cases, it has been held by this court as well as the Apex Court that conditions which are going beyond the circumstances contemplated in section 96 (2) of the Motor Vehicles Act are not conditions in law and cannot be taken note of for avoiding liability of the insurance company. Therefore, in my view, the mere use of the vehicle in question for carrying water for drinking purposes instead of taking the very same water for plants and trees cannot be said to be a contravention of the condition and that should not seriously be taken note of to avoid liability of the insurance company.
Further, as per the definition of agricultural trailer, agricultural trailer is meant for transporting agricultural materials predominantly. Since the word used is ''predominantly'', there is no prohibition for using the same for taking other materials. Further, in the circumstances of the case, when the tractor-cum-trailer is used for taking mutton for the family of the owner of the tractor-cum-trailer, it would not be said that the vehicle was used for taking materials other than the agricultural materials.
The next contention of the appellant was that the driver did not possess valid driving licence. According to the appellant, he possessed driving licence only to drive light motor vehicle. I have perused Exh. A3. As per Exh. A3, the driving licence, the driver was issued driving licence to drive light motor vehicle and also he was authorised to drive transport vehicle, by necessary endorsement. In fact, Commissioner recorded a finding that the tractor-cum-trailer is only a light motor vehicle as per section 2 (21) of the Motor Vehicles Act read with the evidence of CW 1. In this regard section 2 (21) of Motor Vehicles Act is extracted hereunder:
Definitions.--In this Act, unless the context otherwise requires--
(21) ''light motor vehicle'' means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which does not exceed 7500 kilograms;
Further, the finding of the Commissioner regarding the driving licence is also extracted hereunder:
The insurance company also took up a stand that the driver did not have valid and effective driving licence. Joseph Xavier, an Assistant, Office of the RTO, Tirunelveli, was examined as CW 1. Though in his chief-examination he has stated that the combined weight of the tractor and trailer exceeds 7500 kg, the driver should have a HMV licence. But during his cross-examination he has accepted that as per Exh. C1 and Exh. C2 the unladen weight of the tractor and the trailer were 4700 kg and 1050 kg respectively which is the total unladen weight of tractor and trailer 5750 kg. It is enough for an LMV driving licence for the driver Muthu to drive this tractor and trailer.
Hence, the defence set up by the insurance company fails, as the driver possessed effective and valid driving licence to drive tractor-cum-trailer. In these circumstances, the appeal fails and the same deserves to be dismissed. In the result, the civil miscellaneous appeal is dismissed. Consequently, connected civil miscellaneous petition is also dismissed. No costs.