ORDER :

1. This miscellaneous appeal has been filed by the appellant-Insurance Company under Section 173 of Motor Vehicles Act, 1988, being aggrieved by award dated 26.07.2007 passed by Additional Member, Motor Accident Claims Tribunal, Dhar, in Claim Case No. 134/2005.

2. Learned counsel for the appellant-Insurance Company submits that present appeal was filed on 22.08.2007 and cross-objection has been filed by respondents/claimants on 01.01.2011 and cross-objections has not been filed within thirty days after service of notice. Hence, cross-objection filed by respondents/claimants are time barred and cannot be looked into. The present appeal has been filed by appellant-Insurance Company on the ground that Insurance Company is not liable to pay compensation. Hence, cross-objections is not maintainable.

3. Learned counsel for the appellant-Insurance Company after referring to Para Nos. 11, 14, 15, 16 and 22 of impugned award and decision in National Insurance Company Limited vs. Ramkalibai and Others in M.A. No. 3531/2008 decided on 11.01.2011, Bablu @ Netram @ Netraj vs. Abhilasha, 2016 (1) MPLJ 45, Oriental Insurance Company Limited vs. Brij Mohan and Others, (2007) 7 SCC 56, New India Assurance Company Limited vs. Vedwati and Others, 2007 ACJ 1043, Oriental Insurance Company Limited vs. Richhabai and Others, 2012 (3) MACD (MP) 1650, Ramdheen Sahu and Another vs. Thanuram and Another, 2012 (3) MACD (Chhattisgarh) 1652, Mithlesh and Others vs. Brijendra Singh Baghel and Others, 2007 (1) MPLJ 315 and Bhav Singh vs. Savirani and Others, 2008 (1) MPLJ 2005 submits that in the instant case, from evidence on record, it is clearly established, that at the time of accident, deceased was sitting on tractor/trolley, therefore, Insurance Company is not liable to pay the compensation.

4. It is also urged that offending vehicle tractor was insured for agricultural purposes and at the time of accident, sand was being transported. Thus, the offending vehicle was being used for commercial purposes and not for agricultural purposes. Thus, Insurance Company can be liable to pay compensation only if tractor/trolley was being used for agricultural purposes.

5. As per Section 147(ii) of Motor Vehicles Act, 1988, only public service vehicle is statutorily required to be insured and tractor/trolley is not a public service vehicle. Hence, under above provision, it is not statutorily required to be insured. It is also submitted that no premium was paid for any person except driver.

6. It is also urged that it is a case of no Insurance. Hence, principle of pay and recover cannot be applied. In this connection, learned counsel for the appellant has referred to the case of Ramkali Bai and Others (supra).

7. On above grounds, it is urged that Insurance Company is not liable to pay compensation as at the time of accident, deceased was sitting on the trolley and it was not insured and the tractor/trolley was being driven in violation of policy conditions. Hence, cross-objections are not maintainable. Accordingly, appeal be allowed and appellant-Insurance Company be exonerated from liability to pay the compensation.

8. Learned counsel for the respondents/claimants submits that at the time of accident, the deceased was not sitting on the tractor, in fact he was traveling as a laborer in trolley. At the time of accident, the trolley was being used for transporting the sand and sand was being transported for construction of well in the field of owner of offending vehicle. Therefore, at the time of accident, tractor/trolley was being used for agricultural purposes. It is not established in the case that trolley was being used for commercial purposes.

9. It is also urged that insurance policy is comprehensive/package policy. The Insurance Company has not filed schedule attached with the insurance policy to show that how many person can sit in the trolley. It is the insurance company who had to establish that no one can it in the trolley but insurance company has failed