Hon’ble Anil Kumar, J.—Facts in brief of the present case are that claimant, namely, Smt. Leela @ Vimal, Anil Kumar, Balram and Sunil Kumar filed a claim petition under Section 166 (1) of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) registered as Motor Accident Case No. 129 of 2001 (Smt. Leela and others v. National Insurance Company Ltd. and others) inter alia stating therein that on 28.3.2001, Ishwardeen, the husband of Smt. Leela was travelling on a tractor having registration No. U.P. 41B 3073 for agriculture work driven by Sri Shiv Magan, owned by Sanjay Kumar Gupta, due to mechanical defect, the tractor had fallen in the ‘Gadda’, as a result of which the driver of the tractor has lost balance and Sri Ishwardeen has fallen from tractor, sustained injury, later on, on 29.3.2001 died at Medical College, Lucknow.

2. National Insurance Company Ltd. while contesting the claim petition had filed a written statement inter alis taking a defence that there is a breach of of the terms of insurance policy, so the insurance company is not liable to pay compensation as claimed by the claimants rather the same is to be paid by the owner of the tractor(Sri Sanjay Kumar Gupta).

3. Sri Sanjay Kumar Gupta, the owner of the Tractor has also filed a written statement taking a defence that the tractor is insured with the National Insurance Company Ltd., so the liability is of Insurance Company being the insurer of the tractor.

4. The Motor Accident Claims Tribunal/Additional District Judge, Court No. 7, Barabanki by means of the judgment and award dated 9.3.2009 had allowed the claim petition awarding a sum of Rs. 1,67,559.00/- with 6% interest per annum from the date of presentation of the claim application i.e. from 7.12.2005 and further directed that the said amount is to be recovered from the National Insurance Company Ltd. being insurer of the tractor under Section 173 of the Act.

5. Sri Deepak Kumar Agarwal, learned counsel for appellant/National Insurance Company Ltd. while supplying the case of the Insurance Company has submitted that the tractor is define under Section 2(44)of the Act which reads as under :

“tractor” means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller.”

And agriculture tractor is defined under Rule 2(b) of Central Motor Vehicles Rules, 1989 which reads as under :

“agricultural tractor” means any mechanically propelled 4-wheel vehicle designed to work with suitable implements for various field operations and/or trailers to transport agricultural materials. Agricultural tractor is a non-transport vehicle.”

6. Accordingly, he submitted that taking into consideration the abovesaid rule as well as Section Section 147 (1)(b)(ii) of the Act, quoted hereinbelow :

“147. Requirements of policies and limits of liability.—(1) (b)(ii) - Against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.”

7. The Insurance Company is not liable to pay compensation in the present case to the claimants as the tractor is not constructed to carry any load other than equipment used for the purpose of propulsion and excludes the road-roller, so once it is established from the report that Sri Ishwardeen (deceased) a passenger travelling on the tractor, the Insurance Company is not liable to pay any compensation rather is payable by the owner of the vehicle. In support of his contention, he has placed reliance on the judgment given by Himachal Pradesh High Court in the case of New India Assurance Company Ltd. v. Sudesh Kumari and others, 2007 (3) TAC 895 (H.P.), Mohan Kushwaha and others v. Ghanshyam and another, 2012 (3) TAC) 299 (All), Oriental Insurance Co. Ltd. v. Anil Kumar and others, 2013 (2) TAC 298 (P & H.), as well as on the judgment given by the Hon’ble Apex Court in the case of New India Assurance company Ltd. v