JUDGMENT :

Heard finally by consent of learned Counsel for both the parties at the stage of admission.

2. The present appeal is filed being aggrieved by the judgment and award dated 28/09/2018 passed by the learned Member Motor Accident Claims Tribunal, Warora, District Chandrapur in Motor Accident Claim Petition No.12/2014.

3. The facts of the present case is as under:

On 08/05/2014, the respondent No.1 asked the deceased to bring sand from Metepar Ghat in his tractor bearing registration No. MH-34/AP-0227. Accordingly, the deceased went to bring the sand to construction site belonging to the respondent No.1. The deceased while returning by his tractor gave a dash to a tree. The deceased sustained grievous injuries on his head and died on the spot. The Tractor at the relevant time was owned by respondent No.1 and was insured with respondent No.2. The appellant being legal representative of the deceased filed claim petition under Section 163-A of the Motor Vehicles Act, 1988 against the respondents.

4. The respondent No.1 admitted the claim made by the petitioner. The respondent No.2 filed its written statement, denied the liability and stated that the tractor and the trolley attached to it were used to bring sand, the said tractor and trolley were used for transportation of goods. According to respondent No.2, the tractor was meant to be used for agriculture use only. The respondent No.2 further submitted that the deceased was not holding valid driving license to drive this class of vehicle. The respondent No. 2 therefore alleged breach of policy on aforesaid grounds and prayed for dismissal of the claim petition.

5. The learned Tribunal after hearing both the sides pleased to dismiss the claim petition filed by the appellant on the ground that as the deceased was using tractor with trolley attached to it for transportation of sand, the tractor became a goods vehicle which resulted in breach of policy. The aforesaid judgment is the subject matter of challenge in the present Appeal.

6. The contention of the learned Counsel for appellant is that it is well settled law that merely because a trolley is attached to a tractor, the said tractor by itself does not become a goods vehicle. The tractor remains a tractor. A person carrying a valid driving license to drive a tractor, he continues to have so even if a trolley is attached to it. The driving license does not become ineffective merely because a trolley is attached to it. It is further contended that it is well settled law that breach of policy can only be claimed by the insurer when such breach is fundamental cause of the accident. It is submitted that act of the deceased of carrying sand in a vehicle registered for agricultural purpose was not fundamental breach of policy as the said act was not the root cause of the accident. Therefore, the learned Tribunal ought to have fastened liability on the respondent No.2. Moreover, it is not the term of policy that it should be used for agricultural purpose.

7. The learned Counsel for appellant relied on following citations :

(1) Nagashetty Vs. United India Insurance Co. Ltd and others reported in (2001) 8 SCC 56

(2) Chabu @ Chayatai Vasanta Kodape and others Vs. Balaji Wasudeo Somankar and another reported in 2023 (3) ABR 205

(3) Fahim Ahmad and others Vs. United India Insurance Company Limited and others reported in (2014) 14 SCC 148

(4) Late Suman Vishwanath Chavan, (Deleted) and others Vs. The Divisional Controller, in First Appeal No.1403/2017 of this Court Bench at Aurangabad.

8. The learned Counsel for the Insurance Company contended that the tractor was attached with trolley and it was used for transportation of goods on construction site. The tractor was authorized for agriculture use only. The deceased was not having valid driving licence to drive this class of vehicle on the date of accident. This fact was known to the respondent No.1 who is father of the deceased. However, he handed over the vehicle for transportation of goods and th