The main legal point established was that the driver having a valid license to drive the tractor was crucial in determining the liability of the Insurance Company.

JUDGMENT

1. Heard Mr. C. A. Joshi, learned Counsel for the appellant (vehicle owner), Mr. P. R. Agrawal, learned Counsel for the respondent Nos.1 to 3 (claimants), and Mr. M. B. Joshi, learned Counsel for the respondent No.4 (Insurance Company).

2. The challenge in this appeal is to the judgment and award dtd. 25/4/2008 made by the Motor Accident Claims Tribunal (Tribunal), Washim in M.A.C.P. No.226/2005 to the extent the impugned award exonerates the Insurance Company and foists the liability of payment of compensation entirely on the appellant owner.

3. Mr. C. A. Joshi, learned Counsel for the appellant pointed out that in this case, the only plea raised by the Insurance Company was that the driver of the tractor did not have a valid and effective driving license to drive the said vehicle and this amounted to a fundamental breach of the terms and conditions of the policy. He submitted that apart from this pleading, there was no other pleading in the written statement filed on behalf of the Insurance Company. He, therefore, submits that the Tribunal erred in taking into consideration the case of the Insurance Company that the tractor was being used for a commercial purpose or that a tractor had one or two trolleys attached to it and even that constituted a fundamental breach of the terms of the Insurance Policy. He submitted that the issue of the license of a tractor driver now stands settled by the three-Judge Bench of the Honble Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Limited reported in (2017) 14 SCC 663 and the Tribunal, in this case, has incorrectly relied on the decisions which have now been overruled by the Honble Supreme Court. For these reasons Mr. C. A. Joshi, learned Counsel for the appellant submits that this appeal may be allowed.

4. Mr. M. B. Joshi, learned Counsel for the Insurance Company submitted that the vehicle insured was a tractor (non- transport vehicle). He submits that the license of the driver of this tractor did not permit him to drive such a non-transport vehicle and that too for commercial purposes. He submits that this amounts to a fundamental breach of the terms of the Insurance Policy and therefore, the Tribunal quite correctly exonerated the Insurance Company from the liability to bear any amount of compensation.

5. Mr. M. B. Joshi, learned Counsel for the Insurance Company further submitted that in this case, witnesses were examined on behalf of the Insurance Company, who have deposed that two trolleys were attached to this tractor and through the two trolleys, the commercial business of sale of water was being carried out. He submits that even this amounts to a fundamental breach of the terms of the Insurance Policy. He pointed out that the policy had covered only one trolley to be attached to the tractor and not two trolleys. He submits that this is an additional reason why the impugned award be not interfered with.

6. Mr. P. R. Agrawal, learned Counsel for the claimants submitted that the claimants are not concerned with the issue raised. But without prejudice, he submitted that the issue now raised in this appeal stands covered by the decision in Mukund Dewangan (supra), and based on the same, it is the Insurance Company that should be made liable to pay the compensation.

7. The rival contentions now fall for determination.

8. The claimants in the present petition had pleaded that on 9/6/2004, when deceased Hunabai and her son were sitting in front of their house, the tractor bearing registration No. MH-30-A-0550 came at a very high speed. The driver of the tractor lost control over the tractor and the tractor dashed Hunabai and her son Dipak. Due to this dash, Hunabai suffered injuries and died on the spot, and her son Dipak was also seriously injured.

9. On the aforesaid pleadings, it is significant to note that at least the claimants had not pleaded that there were any trolleys, whether one or two, attached to the tractor at the time of the accident. Therefore, i