APHC010549832012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3365] TUESDAY ,THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2752/2012 Between: G.Narayanaswamy ...APPELLANT AND G Siddaramaiah Another and Others ...RESPONDENT(S) Counsel for the Appellant: 1. MD SALEEM Counsel for the Respondent(S): 1. RAMA MOHAN RAO KOTHA 2. . MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2758/2012 Between: G. Narayanaswamy ...APPELLANT AND 2 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 V Narayana Reddy Another and Others ...RESPONDENT(S) Counsel for the Appellant: 1. MD SALEEM Counsel for the Respondent(S): 1. RAMA MOHAN RAO KOTHA 2. SURESH KUMAR REDDY KALAVA The Court made the following: 3 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR M.A.C.M.A.No.2752 of 2012 and M.A.C.M.A.No.2758 of 2012 COMMON JUDGMENT: M.A.C.M.A.No.2752 of 2012, under Section 173 of the Motor Vehicles Act, 1988, is filed by the owner of the offending tractor-cum-trailer assailing the award dated 11.07.2012 of the learned Chairman, Motor Accidents Claims Tribunal-cum-VII Additional District Judge (F.T.C.), Madanapalle (hereinafter referred to as ‘the Claims Tribunal’) in O.P.No.182 of 2009. 2. M.A.C.M.A.No.2758 of 2012, under Section 173 of the Motor Vehicles Act, 1988, is filed by the owner of the offending tractor-cum-trailer assailing the award dated 11.07.2012 of the learned Chairman, Motor Accidents Claims Tribunal-cum-VII Additional District Judge (F.T.C.), Madanapalle (hereinafter referred to as ‘the Claims Tribunal’) in O.P.No.174 of 2009. 3. Heard arguments of Sri Shaik Meeravali, the learned counsel appearing on behalf of Sri M.D.Saleem, the learned counsel for appellant, Sri Chaitanya, the learned counsel 4 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 appearing on behalf of Sri Suresh Kumar Reddy Kalava, the learned counsel for respondent No.1/claimant and Sri Rama Mohan Rao Kotha, the learned counsel for respondent No.2/Insurance Company. 4. The following facts are required to be noticed: These two appeals pertain to an automobile accident that occurred on 02.11.2006 on Kallur - Pulicherla road near Vagallavaripalle Railway gate. The tractor bearing registration No.AP 04 D 5586 attached with a trailer bearing registration No.AP 04 D 5587 is owned by Sri G.Narayanaswamy. He insured the vehicle with the United India Insurance Company Limited as evidenced by Ex.B.1-insurance policy. At the material point of time the driver of this tractor-cum-trailer drove it rashly or negligently and dashed an auto rickshaw bearing registration No.AP 03 U 9237. Because of the impact the persons travelling in the auto rickshaw suffered injuries. Sri G.Siddaramaiah suffered serious injuries and seeking compensation of Rs.2,00,000/- he filed O.P.No.182 of 2009. Sri V.Narayana Reddy suffered injuries and he filed O.P.No.174 of 2009 seeking 5 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 compensation of Rs.50,000/-. Both the claims were made under Section 166 of the Motor Vehicles Act before the learned Chairman, Motor Accidents Claims Tribunal-cum-VII Additional District Judge (F.T.C.), Madanapalle. In both the matters the owner of the tractor-cum-trailer was made as respondent No.1 and the insurance company was made as respondent No.2. Each of the respondents filed their counters. 5. In O.P.No.182 of 2009 the learned Claims Tribunal settled the following issues: 1) Whether the accident occurred was due to rash and negligent driving of the driver of the Tractor bearing its registration No.AP 04 D 5586 and Trolley No.AP 04 D 5587 involved resulting the injuries to the petitioner by name G.Siddaramaiah? 2) Whether the petitioner is entitled for compensation? If so, by whom and to what amount? 3) To what relief? 6. For claimant, PWs.1 and 2 were examined and Exs.A.1 to A.7 and Ex.X.1 were marked. The owner of the tractor-cum- 6 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 trailer testified as RW.1 and officer of the insurance company testified as RW.2 and Ex.B.1-insurance policy was marked. 7. In O.P.No.174 of 2009 the learned Claims Tribunal settled the following issues: 1) Whether the accident occurred was due to rash and negligent driving of the driver of the Tractor bearing its registration No.AP 04 D 5586 and Trolley No.AP 04 D 5587 involved resulting the injuries to the petitioner by name V.Narayana Reddy? 2) Whether the petitioner is entitled for compensation? If so, by whom and to what amount? 3) To what relief? 8. The claimant testified as PW.1 and Exs.A.1 to A.3 were marked. The owner of the tractor-cum-trailer testified as RW.1 and the officer of the insurance company testified as RW.2 and a copy of the insurance policy was marked as Ex.B.1. 9. After considering the evidence on record and the contentions raised on both sides, the learned Claims Tribunal 7 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 agreed with the testimony of the injured in both the cases and found support from the conclusions arrived at by the investigating police in registering crimes and in prosecuting the driver of the offending tractor-cum-trailer and held that it was out of his rash or negligent driving the claimants suffered injuries. 10. In O.P.No.182 of 2009 the learned Claims Tribunal assessed compensation under various heads and granted compensation of Rs.2,00,000/-. In O.P.No.174 of 2009 it assessed the compensation under various heads and granted Rs.15,500/- as compensation. Claimant in each case was granted respective costs and interest at the rate of 7.5% per annum from the time of claim petition till the date of deposit. In both the matters it held that the owner of the offending tractor- cum-trailer was to shoulder the responsibility. It exonerated the insurance company on the premise that at the material point of time there was breach of insurance policy condition. It recorded that at the material point of time the tractor-cum-trailer was used not for the agreed purpose/agricultural purpose and therefore the insurance company was absolved of any liability. 8 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 11. As against the award in O.P.No.182 of 2009, M.A.C.M.A.No.2752 of 2012 and as against the award in O.P.No.174 of 2009, M.A.C.M.A.No.2758 of 2012 are filed by the owner of the offending tractor-cum-trailer. In both the appeals respondent No.1 is the claimant and respondent No.2 is the insurance company. In both the appeals the findings of the Claims Tribunal with reference to the amount of compensation and the cause of accident and the finding that the driver of the offending tractor-cum-trailer was rash or negligent at the material point of time have not been disputed. Therefore, any further discussion on those aspects is not called for. 12. The points that fall for consideration in these appeals are: 1. Whether from the evidence on record it could be said that the offending tractor-cum-trailer was used for purposes other than the purposes for which it could be used in terms of the insurance policy/Ex.B.1? 9 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 2. Whether the awards cannot be sustained in exonerating the insurance company from any liability? POINT NOs.1 and 2: 13. The fact that the offending tractor-cum-trailer is covered by Ex.B.1-insurance policy and at the material point of time/02.11.2006 the policy was in force and that the said insurance policy was obtained by the appellant in both the appeals is not in dispute. It is also not in dispute that the policy was obtained wherein it is mentioned that this tractor-cum-trailer was meant to be used for agricultural purposes. From the evidence on record, it is undisputed that at the material point of time the tractor-cum-trailer was carrying load of wood to be used for the tomato crop in the agricultural lands of appellant/owner of tractor-cum-trailer. 14. Learned counsel for appellant in both the appeals argued that as per the rival contentions and from the evidence on record Ex.B.1-insurance policy which contains certain exclusionary clauses in terms of Section 149(2)(a)(i)(b) of the Motor Vehicles 10 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 Act, 1988. In other words at the material point of time the offending tractor-cum-trailer was not used for any organised racing or speed testing. This aspect is not in dispute. According to the learned counsel for respondent No.2-insurance company, the offending vehicle was used for hire or reward at the material point of time and therefore Section 149(2)(a)(i) of the Motor Vehicles Act, 1988 was violated. The further submission of the learned counsel for insurance company is that the Claims Tribunal after citing precedent observed that in terms of Explanation I to Section 10 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 using the tractor-cum-trailer for transportation of sticks for tomato plants falls under commercial purposes and therefore, it rightly excluded the liability of the insurance company and no interference is called for in these appeals. 15. As against it, the learned counsel for appellant in both the appeals contended that the evidence on record did not establish that at the material point of time it was used for commercial purposes or for hire and in such circumstances carrying wood for the agricultural purposes of the owner to be used in tomato 11 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 harvesting cannot be called as violation of policy conditions. In this regard, the learned counsel for appellant cited Fahim Ahmad v. United India Insurance Company Limited1. 16. After considering these rival submissions, the following aspects are to be stated: The following statutory principles from the Motor Vehicles Act, 1988 are required to be noticed: Section 2(44): “tractor” means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road- roller. Section 2(46): “trailer” means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle. Section 2(14): “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods; 1 2014 INSC 198 12 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 17. Andhra Pradesh Motor Vehicles Taxation Act, 1963 (Act No.5 of 1963) is an act to consolidate and amend the law relating to levy of tax on motor vehicles in the State of Andhra Pradesh. Section 10 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 reads as below: “10. Provisions of this Act not to apply to the motor vehicles designed and used solely for agricultural and mining purposes:- (1) Nothing in this Act shall apply to a motor vehicle registered in the name of the owner or occupier of any agricultural land or mine if such land is under his personal cultivation or if such mine is being worked personally by him and such motor vehicle is designed and used solely for carrying out agricultural or mining operations on such land or mine or within a distance of fifteen miles from the limits of such land or mine. (2) Notwithstanding anything contained in the Act, a tax at rupees twenty five per quarter shall be levied on any vehicle specified in sub-section (1), when the vehicle is not used solely for carrying out such agricultural or mining operations but is used by its registered owner for any other purpose of his own. Explanation I: - For the purpose of this Section, the expression "agricultural operation" shall mean tilling, sowing, harvesting, crushing of agricultural produce or any other similar operation carried out for the purpose of agriculture; 13 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 but shall not include the transporting of persons, manure of materials for the purpose of agriculture or the transporting of agricultural produce except when such transporting is made by the owner or occupier of the land for his own purposes,- Within a distance of fifteen miles from the limits of such land, or (ii) To or from the nearest market place irrespective of the distance of such market from the limits of such land. Explanation II: - For the purpose of this Section, "personal cultivation" means by a person of his own land and on his own account,- (1) by his own labour; (2) by the labour of any member of his family; or (3) by servants on wages payable in cash or kind or both by hired labour under his personal supervision or under the personal supervision of any of his relatives. Explanation III: - For the purpose of this Section, the expression "mining operation" operation undertaken for the purpose of winning any mineral.” 18. So long as the policy of insurance is in force the insurance company is liable to pay compensation to third party claimants. However, the insurance company is entitled to plead and prove 14 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 that there was fundamental breach of policy conditions. In the event of its success in that regard, it is entitled to disown the liability. In the cases at hand, it has been the contention of the insurance company that there were policy violations. At the material point of time, according to the impugned award, the vehicle was under the control of Sri P.Devendra. The Claims Tribunal took the view that Sri P.Devendra was not the owner of the tractor-cum-trailer. In that view of the matter, it concluded saying that the tractor-cum-trailer was used on hire. The point to be observed here is that there should be some evidence oral or documentary to establish the fact that Sri P.Devendra took the tractor-cum-trailer on hire. The best evidence to speak about it is Sri P.Devendra. His evidence was not tendered before the Claims Tribunal. No documents indicating that the vehicle was given on hire were exhibited by the insurance company. Evidence adduced on behalf of the claimants who were third parties do not disclose that the offending tractor-cum-trailer was used on hire by Sri P.Devendra. The officer from the insurance company was not a witness to the accident or the factum of hiring of the vehicle. There is no clue in this regard about any of the 15 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 documents exhibited. Then in such a case there was no tangible evidence to factually conclude that Sri P.Devendra was a hirer. According to the learned counsel for the appellant in both the cases, the said individual was one who was assisting the agricultural operations. There is no evidence on record to say that there were no agricultural activities for the owner of the tractor-cum-trailer. In such circumstances it is difficult to support the findings given by the Claims Tribunal about Sri P.Devendra. 19. It remained undisputed from evidence that in the lands of the agriculturist/appellant tomato was to be harvested for which sticks were to be used for allowing the growth of creepers. At the material point of time the offending vehicle was carrying sticks/wood. As a matter of fact, that was accepted by the Claims Tribunal, yet it took the view that in terms of Explanation I to Section 10 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 such activity does not amount to using of vehicle for agricultural purposes. A keen reading of Section 10 of the Andhra Pradesh Motor Vehicles Taxation Act would show that "agricultural operation" shall mean tilling, sowing, harvesting, 16 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 crushing of agricultural produce or any other similar operation carried out for the purpose of agriculture. The provision further clarifies that the transporting of materials for the purpose of agriculture is not agricultural operation. It further mentions that such a carriage of material for the purpose of agriculture amounts to agricultural operation when such transportation was made by the owner or occupier of the land for his own purposes. There is absolutely no evidence on record produced by the insurance company to say that the sticks/wood being carried in the tractor- cum-trailer at the material point of time was not meant for the use in the land of the owner of the land, who owns the offending vehicle. An exclusionary clause has to be pleaded and proved with such evidence, which should inspire confidence. In the case at hand, the insurance company failed to meet the test. In the earlier referred Fahim Ahmad’s case2, the Hon’ble Supreme Court of India after referring to National Insurance Company Limited v. V.Chinnamma3 held that a tractor fitted with a trailer may or may not answer the definition of ‘goods carriage’ 2 supra 1 17 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 contained in Section 2(14) of the Motor Vehicles Act. It was further held that the insurance company had the duty to plead the breach and substantiate the same by adducing positive evidence in support of its plea. In the absence of any such evidence the Tribunals cannot presume that there was breach of condition of the insurance policy. On application of the said principles to the facts available on record, this Court is of the view that at the material point of time the offending tractor-cum-trailer was validly insured and it was used for carrying sticks/wood in the agricultural lands of the owner of the offending vehicle and thus it was not used on hire or reward and it was not used for purposes other than agricultural purposes. The contrary view arrived at by the Claims Tribunal is incorrect on facts and law and could not be sustained. There is merit in the contentions raised in these appeals. Hence, points are answered in favour of the appellant/owner of the offending vehicle and against the insurance company. In this view of the matter it has to be recorded that the compensation awarded to the third party 3 2004 (7) SC 167 18 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 claimants by the Claims Tribunal holds good and the liability to pay it is to be shouldered jointly and severally by the owner of the offending tractor-cum-trailer and the insurance company. Accordingly, the awards are to be modified. 20. In the result, M.A.C.M.A.No.2752 of 2012 is allowed. Consequently, the award dated 11.07.2012 of the learned Chairman, Motor Accidents Claims Tribunal-cum-VII Additional District Judge (F.T.C.), Madanapalle in O.P.No.182 of 2009 fixing liability on the first respondent therein is modified. The liability to pay compensation amount of Rs.2,00,000/- with 7.5% interest per annum from the date of petition till the date of realization shall be shouldered jointly and severally by appellant herein and respondent No.2-Insurance Company herein. Before the Claims Tribunal the second respondent-Insurance Company shall deposit the compensation amount within one month from the date of this judgment along with proportionate costs with 7.5% interest per annum as ordered in the award by the Claims Tribunal, after giving due credit to amount paid if any. On such deposit, 19 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 respondent No.1 herein/claimant is entitled to withdraw the same along with accrued interest thereon. M.A.C.M.A.No.2758 of 2012 is allowed. Consequently, the award dated 11.07.2012 of the learned Chairman, Motor Accidents Claims Tribunal-cum-VII Additional District Judge (F.T.C.), Madanapalle in O.P.No.174 of 2009 fixing liability on the first respondent therein is modified. The liability to pay compensation amount of Rs.15,500/- with 7.5% interest per annum from the date of petition till the date of realization shall be shouldered jointly and severally by appellant herein and respondent No.2-Insurance Company herein. Before the Claims Tribunal the second respondent-Insurance Company shall deposit the compensation amount within one month from the date of this judgment along with proportionate costs with 7.5% interest per annum as ordered in the award by the Claims Tribunal, after giving due credit to amount paid if any. On such deposit, respondent No.1 herein/claimant is entitled to withdraw the same along with accrued interest thereon. There shall be no order as to costs in these appeals. 20 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 As a sequel, miscellaneous applications pending, if any, shall stand closed. ________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 25.02.2025 Ivd 21 Dr. VRKS, J M.A.C.M.A.Nos.2752 & 2758 of 2012 THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR M.A.C.M.A.No.2752 of 2012 and M.A.C.M.A.No.2758 of 2012 Date: 25.02.2025 Ivd