The main legal point established in the judgment is that the Insurance Company can be held liable for compensation in a motor vehicle accident case, even if the vehicle was being used for commercial purposes in violation of policy conditions, and can recover the amounts paid from the owner of the vehicle under the Pay and Recovery policy.

JUDGMENT :

B.M. Shyam Prasad, J.

This appeal and cross-objection are filed calling in question the judgment and award dated 28.07.2012 in MVC.No.2/2011 on the file of Fast Track-I and MACT-II Yadgiri (for short 'Tribunal'). The appeal is filed by the Insurer of the Tractor and Trailer bearing Reg.No.KA- 33-T-6061 T-6062 (for short 'the Tractor - Trailer). The cross-objection is filed by the father of the deceased seeking enhancement in the compensation. The Tribunal has awarded a total sum of Rs.4,52,000/- along with interest at the rate of 6% p.a. from the date of filing of claim petition till its realization.

2. The learned counsel for the Insurance Company submits that on 05.04.2010 the deceased - Nagappa was on the engine of the Tractor and therefore, the Insurance Company will not be liable. Further, the Insurance Company would also not be liable because the Tractor and Trailer was being used in breach of the policy condition. The Insurance Company has issued the policy for the Tractor and Trailer covering the risk that would be arise from the use for agricultural purpose. But, the Tractor and Trailer was used for commercial purpose for transporting the sand.

3. The learned counsel for the Insurance Company submitted that the undisputed facts are that the Tractor and Trailer was stuck in the riverbed. The driver requested the deceased to stand on the engine of the Tractor hoping that his weight would helpful him in taking out the Tractor and Trailer from the river bed sand. When the driver of the Tractor and Trailer revved the engine to get it out of the riverbed, the deceased fell down from the engine and the Tractor and Trailer ran over the deceased. The deceased was admitted in the Government Hospital for treatment and he died about 2 and half months after the date of the accident. The jurisdictional police registered FIR on the basis of the deceased's statement as per Ex.P.2. The deceased categorically stated before the police that he was standing on the engine of the Tractor on the instruction of the driver.

4. The learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited /vs/ Premalata Shukla and others, (2007) 13 SCC 476 : (2009) 1 SCC (Cri) 204 and the decision of this Court in MFA.No.779/2009 (MV) to contend that the Claimant cannot dispute Ex.P.2. Once a document is relied upon, the claimant cannot take selective advantage of such document relying upon a part thereof and deny other part which could be inconvenient to his case. It is settled law that only one person is permitted on the Tractor and that person is the driver. If any other person is carried on the Tractor and there is a liability, the Insurance Company is not liable.

5. The learned counsel for the Insurance Company also argued that it is indisputable from the facts and circumstances of the case that the Tractor and Trailer was being used contrary to the purpose for which it was registered and insured. The Tractor - Trailer was being used for commercial purpose in violation of the terms of the policy issued to cover the risk arising from the use of the offending vehicle for agricultural purposes. Therefore, the Insurance Company could not have been held liable. Despite specific defense in these regards by the Insurance Company, the Tribunal has not considered the same.

6. The learned counsel for the claimant, who is the cross-objector, refuted the first submission as regards the deceased being on the engine of the Tractor. The learned counsel submitted that the claimant was not only relying upon the FIR, but was also relying upon the statement of the claimant himself before the police that he was present at the time of accident and he was a witness to the accident. Further, the other police records also establish that the deceased was not on the engine of the Tractor as contended by the Insur