Narain Singh "Azad", J.
1. The appellant/insurer has assailed the award dated 25-11-2003 passed by Motor Accident Claims Tribunal, Balaghat, in Claim Case No. 62/2002, wherein an amount of Rs. 1,80,000/- is awarded to the respondent/claimant Nos. 1 and 2, for death of their son Vijay Kumar, aged 18 years.
2. According to the claimant/respondent Nos. 1 and 2, on 29-4-2002 when deceased Vijay Kumar was working under the employment of non-applicant No. 2, the owner of Tractor No. MP-20-B/6420, as a loader (Hammal), on aforesaid Tractor, he got crushed under the wheel of the Tractor, when non-applicant No. 1 Manohar, drove the Tractor rashly and negligently at Balaghat-Baihar Road, near railway crossing and Vijay Kumar, who was sitting in the Tractor, along with other loaders fell to the ground and thus came under the wheel.
3. The learned Tribunal adjudged the deceased's income to be Rs. 2000/- per month on the basis of thorough assessment of evidence adduced on behalf of the respondents/claimants and thus held the annual dependency to be Rs. 10,770/-. Applying the appropriate multiplier of 16, an amount of Rs. 1,72,500/- is arrived at for the death of Vijay Kumar. Rs. 2000/- are awarded as funeral expenses and an amount of Rs. 5,500/- is ordered to be paid for loss of love and affection, making a total amount of Rs. 1,80,000/-.
4. The appellant/insurer has assailed the award on the grounds that the deceased was not sitting in the trolley but was sitting on tractor whereas only one person, i.e., the driver was permitted to occupy the seat on tractor, that at the time of accident, the trolley was loaded with dowry goods and the deceased was travelling on tractor as a "Barati".
5. It is not being disputed that at the time of accident, the aforesaid tractor bearing No. MP-20-B/6420, owned by Manoj Kumar, non-applicant No. 2 (respondent No. 4) was validly insured with appellant/insurer, for agricultural purposes. Then relying on unrebutted statement of respondent/claimant Sarvanlal and claimant's witness Tapesh Kumar, the eye-witness, so also FIR (Ex. P-1), it is opined by the learned Tribunal that at the time of accident, the deceased along with other loaders inclusive of Tapesh Kumar, who were working on the involved tractor of Manoj Kumar non-applicant No. 2, were returning back to the residence of non-applicant Manoj Kumar, after getting the tractor repaired, when the accident occurred on account of rash and negligent driving by Manohar/non-applicant No. 1. Since no rebuttal evidence is adduced on behalf of appellant/insurer to prove this fact that at the time of accident, the tractor was being used to carry the marriage party of which the deceased was a member, the learned Tribunal is found to have committed no illegality in arriving at this conclusion that at the time of accident, the deceased was travelling on the tractor in the capacity of a loader, under the employment of non-applicant No. 2 Manoj Kumar the owner.
5. Then for the sake of argument, even it is opined that at the time of accident, the tractor was being used to transport a marriage party, for which it was not insured then, as per Clause 7 of Rule 97 of M.P. Motor Vehicles Rules, 1994, a tractor-trailor registered in the name other than Industrial Organisation, Municipal Institutions, Water Supply Institution and Non-agricultural Co-operative Societies for unladen weight up to 7300 Kgs. may be used for marriage purposes also. The relevant provision runs as under:--
"(7) Notwithstanding anything contained in Sub-rules (1) and (2) but subject to the provisions of Sub-rule (5) such tractor-trailor other than those registered in the name of Industrial Organisation, Municipal Institutions, Water Supply Institution and Non-agricultural Co-operative Societies, and the unladen weight of which does not exceed 7300 Kgs. may be used for the following purposes:--
(i) for carrying labours and the members of the family of agriculturist for the purpose of agriculture or any purpose connected with agriculture including sale and purchase of articles of agriculture.
(ii) for carrying persons at the time of Mela, Markets, Religious Functions, marriages and at other ceremonial occasions provided that the number of persons so carried shall not exceed 20 at a time.".
6. On considering various earlier pronouncement of Apex Court, it is laid down by a Division Bench of this Court in Pushpa Devi and Ors. v. Kamal Singh and Ors., reported in 2001(3) MPLJ page 548, that even if the insured tractor is used for carrying passengers, contrary to the policy of insurance, the insurer is liable to pay entire award to the claimants and upon making such payment, the insurer may recover the excess amount from the insured by executing the award against the insured to the extent of such excess. The relevant Paras 32 and 33, appearing at page 554, are as under :--
"32. In Paragraph 25 of the aforesaid decision, it was indicated that the insurer and the insured are bound by the conditions enumerated in the policy and the insurer was not liable to the insured if there was violation of any policy decision. But the insurer who was made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid licence.
33. In view of the aforesaid position of law and what has been indicated herein before, the appeal is allowed in part holding that the appellant/Insurance Company is liable to pay the entire award amount to the claimants and upon making such payment, the appellant Company can recover the excess amount from the insured by executing the award against the insured to the extent of such excess as per Section 174 of the Motor Vehicles Act, 1988. The impugned award shall stand modified to that extent. In other respects, since the owner has submitted to the impugned award, it shall remain intact."
7. Relying on Pushpadevi and Ors. v. Kamal Singh and Ors. (supra), in Civil Revision No. 922/2002, Madhu and Anr. v. Munna and Ors., disposed of by this Court on 10-9-2003, also, it is held that even if the deceased was travelling as a member of a marriage party in tractor trolley, which was being used otherwise then for agricultural purpose, for which it was insured, the insurer is liable to pay compensation to the claimant/sufferer on account of aforesaid Clause 7 of Rule 97 of Motor Vehicles Rules, 1994.
8. Affirming the view taken by the Division Bench of this Court in Pushpadevi and Ors. v. Kamal Singh and Ors. (supra) and Usha Jain v. United India Insurance Co. and others, reported in 1996 JLJ 117, it is laid down by a Full Bench of this Court in Jugal Kishore and Ors. v. Ramlesh Devi and Ors., 2003(4) M.P.H.T. 574 (FB) = 2003(4) MPLJ 546 that :--
"The third party will include the passengers in the vehicles, not travelling for hire or reward. Once it is held that the passenger is travelling for hire or reward in any vehicle other than public service vehicle or in breach of conditions of Section 95(2) of Motor Vehicles Act, the Insurance Company is not liable to indemnity third party otherwise insurance company is liable to indemnity is liable to indemnify such passenger".
The relevant Paras 17 and 18 are being reproduced as under:--
"17. Section 145(g) of the Act defines "third party". It defines that the "third party" includes the Government. It would mean that other than the contracting parties to the insurance policy, the expression "third party" should include everyone, be it a person travelling in another vehicle, one walking on the road or a passenger in the vehicle itself which is the subject-matter of the insurance policy. Every insured takes out an insurance policy against a third party risk and enters into a contract with insurer only with the motive, intention and purpose of covering the risks which may arise in relation to claims lodged against him by a third party. Insurer agreeing to issue insurance policy thereby undertakes to insure the insured and indemnity him against all risks in relation to all claims lodged against him by third party. It will not be proper to narrow the scope and ambit of the word "third party" and exclude the passengers from the operation and purview which would not only defeat the very purpose of taking out the insurance policy, but the very object of the Motor Vehicles Act which makes it mandatory requirement of law that all vehicles/owners of the vehicles must be compulsorily insured against third party risk.
18. We are in full agreement with the Division Bench judgment of this Court in the case of Usha Jain (supra) where the word "third party" is defined and it is held that in the context of the provision contained in Chapter VIII of the scheme of insurance with regard to motor vehicles it may well be understood by the words "third party", that they include persons and Government other than the insurer and insured. Section 94 provides that no persons shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place without any insurance as provided in the Act. Only exception made in Sub-section (2) is in respect of Government vehicles and vehicles of local authorities and State transport undertakings. Therefore, it is held that third party will be a party other than insurer and insured. We hold that third party will include the passengers in the vehicles not travelling for hire or reward. Once it is held that the passenger is travelling for hire or reward in any vehicle other than public service vehicle or in breach of conditions of Section 95(2) of the Motor Vehicles Act, insurance company is not liable to indemnify third party otherwise, insurance company is liable to indemnify such passenger."
9. In this case of course it is not found proved that at the time of accident, the tractor was being used contrary to the purpose for which it was insured, yet in the light of aforesaid view taken by this Court in Civil Revision No. 922/2002, Madhu and Anr. v. Munna and Anr., disposed on 10-9-2003, on a consideration on Clause 7 of Rule 97 of Motor Vehicles Rules, 1994, so also the law laid down by the Full Bench of this Court in Jugal Kishore v. Ramlesh Devi (supra), the appellant/insurer is liable to indemnify the death of deceased Vijay Kumar and hence the learned Tribunal is found to have committed no illegality or impropriety in holding the
appellant/insurer/non-applicant No. 3, also liable to pay compensation to the claimants/respondents.
10. Thus, this appeal has no merits, which is accordingly rejected at the stage of motion hearing.