JUDGMENT

S.B. SINHA, J.

1.Leave granted.

2.Appellant Insurance Company is before us being aggrieved by and dissatisfied with the judgment and order dated 27.1.2004 passed by a Division Bench of the High Court of Rajasthan dismissing an appeal from the judgment and award dated 7.4.1999 passed by Motor Accident Claims Tribunal, Baran in the State of Rajasthan.

3.First Respondent Brij Mohan filed the claim petition. He was a labourer. On or about 11.3.1998 he was travelling on a trolley attached to a tractor. There exists a dispute as to whether both the tractor and the trolley were insured or not. It may not be necessary to determine the said question. He was engaged to dig earth from a place known as Shishwali Ka Rasta. The earth so dug was loaded on the trolley attached to the tractor. Respondent and other workers were returning to the Bhatta (brick-klin). He was sitting on the earth loaded on the trolley. The tractor allegedly was being driven rashly and negligently by Hemraj, the driver. He slipped down from the trolley, came under the wheels thereof injuring his gall-bladder and left thigh, as a result whereof he suffered grievous injuries.

4.The learned Tribunal noticed the defence raised by the appellant herein in the said proceedings which, inter alia, were :

(i)the trolley was not insured, and only the tractor was insured;

(ii)as the tractor was not being used for agricultural work, the

claim petition was not maintainable.

(iii)issuance of premium having been paid only for one person,

namely, the driver of the tractor; no award could be passed

against the insurer.

5.The Tribunal, however, by reason of its award, awarded a sum of Rs. 1,96,100/- by way of compensation in favour of the respondent in respect of the injuries suffered by him as a result of the said accident. An appeal, preferred thereagainst, as noticed hereinbefore, has been dismissed by the High Court by reason of the impugned judgment.

6.Mr. M.K. Dua, learned counsel appearing on behalf of the appellant submitted that the Tribunal as also the High Court committed manifest errors in passing the impugned Award and judgment insofar as they failed to take into consideration :

(i)The tractor alone was insured and thus the claim petition was not maintainable.

(ii)In any event, Respondent no.1 was merely a gratuitous passenger and thus the claim was not covered under Section 147 of the Motor Vehicles Act, 1988.

(iii)The tractor having not been used for agricultural purpose there had been a violation of the conditions of contract of insurance.

7.Ms. Indu Malhotra, learned counsel appearing on behalf of the respondent, on the other hand, submitted :

(i).The question as to whether both the tractor and the trolley were

insured or not having not been raised before the Tribunal, this

Court should not permit the appellant to raise the said

contention before this Court.

(ii)The representative of the appellant in his statement before the

Court admitted that putting the earth and leveling the field

would also be an agricultural work and thus it cannot now be

contended that the tractor was not being used for the said

purpose.

(iii)In any event, having regard to the grievous injuries suffered by

the respondent, this Court should direct the appellant to pay the

awarded amount and recover the same from the owner of the

tractor and trolley.

8.The Tribunal in its award has, inter alia, noticed that the appellant herein had raised a specific defence, namely, the trolley was not insured. It does not appear that the said contention of the appellant had been gone into. There is nothing on records to show that the owner of the tractor had produced any insurance cover in respect of the trolley. It is furthermore not disputed that the tractor was insured only for the purpose of carrying out agricultural works. The representative of the Insurance Company Mr. Hari Singh Meena on cross-examination merely accepted the suggestion that cutting the earth and levelling the