B. Manohar, J.

The appellant/insurance company has filed this appeal being aggrieved by the judgment and award dated 25-6-2011 made in MVC No. 891/2009 passed by the District Judge, Additional Motor Accident Claim Tribunal-II, I Fast Track Court, Shimoga (hereinafter referred to as the Tribunal for short) fastening the liability on them to compensate the claimant.

2. The first respondent herein filed the claim petition contending that on 8-4-2009 at about 5.30 p.m., while he was travelling in a tractor and trailer bearing Registration No. KA-14/TA-1543-44 belonging to the 3rd respondent herein on Tank Bund of Basavanagangoor village, the driver of the Tractor and Trailer drove the vehicle in a rash and negligent manner. As a result of which, the Tractor and Trailer turned turtle. In view of that, the claimant fell down and sustained grievous injuries. He filed a claim petition contending that due to the rash and negligent driving of the Tractor and Trailer, the accident has occurred. Hence, sought for compensation of Rs. 5,20,000/-.

3. Though the owner as well as the driver of the Tractor and Trailer were served and entered appearance and that they have filed statement of objections, they have not participated in the trial. The third respondent/insurance company filed written statement denying the entire averments made in the claim petition and contended that the claimant was an unauthorized passenger sitting in the tractor and the insurance policy does not cover the risk of the passenger travelling in the tractor. In violation of the conditions of the policy, the Tractor and Trailer is being used for commercial purposes. Hence, sought for dismissal of the claim petition as against the insurance company.

4. On the basis of pleadings of the parties, the Tribunal framed the necessary issues. The claimant in order to prove his case got examined himself as P.W.1 and got marked the documents as Ex. P.1 to Ex. P 110. The doctor who treated the claimant and issued disability certificate was examined as P.W.2. On behalf of the 3rd respondent/insurance company, one of the officers was examined as R.W.1 and the insurance policy of the Tractor and Trailer was marked as Ex. R1.

5. The Tribunal after appreciating the oral and documentary evidence and taking into consideration the spot panchanama, IMV report, copy of the complaint and FIR held that the accident occurred due to the rash and negligent driving of Tractor and Trailer by the driver and the claimant has sustained injuries. Taking into consideration the injuries sustained and suffering undergone by the claimant, the Tribunal has awarded compensation of Rs. 2,65,991/- with interest at the rate of 6% p.a. Since the insurance policy covers the risk of the Tractor and Trailer, the liability was fastened on the insurance company to compensate the claimant. Being aggrieved by fastening the liability on the insurance company, they have filed this appeal.

6. Sri H.S. Lingaraju, learned counsel appearing for the appellant contended that fastening liability on them to compensate the claimant is contrary to law. The records clearly disclose that the claimant was travelling on the tractor. The seating capacity of the tractor is only one. So it is very clear that the claimant was sitting either on the mud-guard or on the engine of the tractor. The insurance policy does not cover the risk of the person travelling in the tractor sitting either on the mud-guard or on the engine. Further, the complaint lodged by one Shivamurthy, who is the uncle of the claimant clearly shows that the claimant was sitting on the engine. As per Rule 28 of the Road Rules, no person can be allowed to sit either on the mud guard or on the engine of the tractor. Hence, fastening the liability on the insurance company to compensate the claimant is contrary to law and sought for setting aside judgment and award passed by the Tribunal. In support of his contention, learned counsel relied upon a Division Bench judgment,