ORDER

Heard on I.A. No.2400/2015, an application seeking condonation of delay in filing of the appeal.

It is mentioned that there is delay of 61 days in filing this appeal.

For the reasons stated in the application, I.A. No.2400/2015 is allowed and the delay in filing the appeal is hereby condoned.

This Miscellaneous Petition is filed by the Insurance Company being aggrieved of award dated 19.07.2014 passed by learned Second Additional Motor Accident Claims Tribunal, Mandla in Claim Case No.74/2009 (Smt. Bisrati Bai and Others Vs. Mangal Singh Uladi and others) on two grounds namely that the thresher attached to the insured tractor bearing registration No.MUJ-2274 was not separately insured and was used for commercial purpose.

It is submitted that driver of the tractor was having learner license and not the regular license, therefore, Insurance company should have been exonerated.

It is also submitted that compensation awarded under non pecuniary heads be reduced as per schedule attached to Section 163-A of Motor Vehicle Act.

Reliance is placed on the judgment of a Coordinate Bench of this High Court in case of Manglesh S/o Chironji Namdeo Vs. Jaykishan (since dead) through L.Rs. and another, 2022(2) MPLJ, 550 where it is held that since thresher was not insured, in absence of Insurance Policy for thresher, insurer is not liable to satisfy the award and owner of the thresher will be liable to satisfy the award.

Learned counsel for respondents No.1 and 8, in his turn, submits that there is no illegality in the impugned award calling for any interference.

After hearing learned counsel for the parties and going through the record, it is evident that four grounds have been raised by the learned counsel for the Insurance Company namely; Non Insurance of thresher, secondly, use of the thresher for commercial purpose as it was used in the field of somebody else, thirdly; driver of the insured tractor was having learners license and fourthly; non pecuniary amount of compensation should be as per schedule attached to Section 163-A.

As far as, last ground is concerned that needs to be rejected and is rejected because claim petition was filed under Section 166 and not under Section 163-A, therefore, schedule under Section 163-A will not have any meaning and application.

As far as, issue of learner's license is concerned, Section 2(19) of the Motor Vehicle Act, 1988 provides that "learner's license" means the license issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description.

Thus, it is not evident from the evidence lead by the Insurance Company that there was any violation of the terms and conditions of the learner's license.

In fact, witness of the Insurance Company Ramraj Vishwakarma, Manager, claims, admitted in his cross-examination that though company got investigation carried out but no investigation report was filed on record. He admits that he has not produced any document to show either commercial use of the Tractor or any violation of the terms and conditions of the policy, therefore, issue of tractor being driven by a person holding learner's license looses its sheen, specially when it is shown that driver was not accompanied with a duly license regular driver, thus these two arguments namely person driving it with learner's license and Tractor being used for commercial purpose are not made out. The only question which now survives for adjudication is whether it is necessary to have separate insurance for the thresher.

As far as, thresher is concerned, it is a piece of farm equipment that threshes green, i.e., it removes the seed from stalks and husks by beating the plant to make a seed fall out.

The Division Bench of this High Court in case of National Insurance Company Ltd., Indore Vs. Kanha and another, 2008 SCC Online 710 has held that if the accident occurred while the tractor is in operation then the risk of