JUDGMENT :

1. Present appeal has been filed by the original respondent No.2-insurance company challenging Judgment and Award passed by learned District Judge-4 and Ex-Officio Member of Motor Accident Claims Tribunal, Nanded in M.A.C.P. No.656/2004 dated 09.12.2011, whereby the insurance company has been held, jointly and severally, liable to pay compensation along with respondent No.1 to the claimants.

2. The claimants are the parents of deceased Madhav who met with an accident and expired when he was travelling from the mudguard of Tractor bearing No.MH 26/C-9288 and Trolly bearing No.MH 26/C-8727 towards Manjari for loading fertilizer at about 9.00 a.m. On 29.05.2004. The driver of the tractor has been prosecuted by police. Madhav was working as a labour and thereby earning Rs.100/- per day.

3. The petition has been resisted by respondent No.1 and respondent No.2 by filing their separate written statements. The owner of the truck i.e. respondent No.1 admitted that deceased was working on his tractor as labour, however, it is contended that the claim is exorbitant and his vehicle was insured with respondent No.2 on the date of the accident. The insurance company denied the age, occupation and income of the deceased. The allegation, that the accident had taken place due to negligence on the part of the tractor driver has been denied. It has been contended that deceased was sitting on the head of the tractor and therefore, he himself was responsible for the accident. The statutory defence challenging its liability to pay compensation has also been taken.

4. The claimants as well as the insurance company has led oral as well as documentary evidence. Taking into consideration the evidence on record and hearing both sides the learned Tribunal has held, that Madhav expired in the motor accident, which was caused due to the negligence in driving of the tractor by its driver. It has been held that the insurance company has failed to prove the breach of terms of policy and under such circumstance, both the respondents have been held liable to pay compensation, jointly and severally, to the claimants. Amount of Rs.2,85,000/- has been awarded together with interest @ 9% per annum from the date of the petition till actual realization of the entire amount. The insurance company has challenged the said Award on the ground of holding it liable, jointly and severally, along with respondent No.1.

5. Taking into consideration the scope of the appeal, following points arise for determination. Findings and reasons for the same are as follows.

1. Whether the Tribunal was justified in holding the insurance company liable, jointly and severally, to pay compensation to the claimants along with respondent No.1 ?

2. Whether under the said circumstance, order of pay and recover can be passed ?

REASONS

6. As aforesaid the other respondent has not challenged any findings of the Tribunal. The scope of the appeal is limited.

7. Heard learned Advocate Mr. S.V. Kulkarni for the appellant, learned Advocate Mr. G.N. Chincholkar for the respondent Nos.1 and 2 and learned Advocate Mr. U.B. Bilolikar for the respondent No.3.

8. It has been vehemently submitted on behalf of the appellant that the learned Tribunal failed to consider, that as per the case of the claimant itself the deceased was travelling by sitting on the mudguard of the tractor, when in fact, he was not allowed. Perusal of the policy would also cover that the risk of the person travelling on the mudguard was not covered, so also, even the labour has not been covered. No extra premium has been paid and it is apparent from Exh.37 the certificate of the insurance together with the particulars of the premium. Therefore, the learned Tribunal ought not to have saddled the compensation on the insurance company.

9. Per contra, the learned Advocate appearing for the claimants submitted after relying on the decision in Shivraj vs. Rajendra and another, 2018 (10) SCC 432, wherein it has been held that

“When the Tribunal