Miss Kamlesh Sharma, J.—These appeals (F. A. O No. 7 of 1991 and 10 of 1991) have been filed at the instance of M/s. Oriental Insurance Company against the award dated 22-8-1990 whereby two claim petitions (Claim Petition No 3 of 1989 and 4 of 1989), arising out of the same accident, were decided. Hence, both these appeals are being disposed of by a common judgment

2. The facts in brief are that a tractor No. H1L-4605 owned by respondent-Khoob Ram and driven by respondent-Roshan Lal met with an accident on 29th November, 1988 at a place known as Thalot situated on the Mandi-Kullu National Highway in which Nand Lal aged 18 years old and Beli Ram aged 19 years old had died. Mother of Nand Lal namely Dhalu Devi filed claim petition No. 3 of 1989 whereas parents of Beli Ram namely Mohan Lal and Teji preferred claim petition No. 4 of 1989. Both these petitions were consolidated by order dated 17th February, 1990 and thereafter their joint trial was held.

3. The case set up in the claim petitions was that deceased Nand Lal and Beli Ram were working as labourers at the crusher owned by one Gopal Sharnia who had hired the tractor No HIL-4605 for carrying the stones from village Thalot on wages On the date of occurrence while stones were being carried in the tractor to the said crusher both the deceased were sitting on it when it fell down the road resulting in their death. It is also stated that another person namely Sunder (PW 5) was also travelling in the tractor but he saved his life by jumping out of it when it rolled down. As per the claimants-respondents the accident had taken place due to rash and negligent driving of the respondent-Roshan Lal, the driver of the tractor.

4. In their joint reply both Khoob Rain, the owner of the tractor and Roshan Lal the driver thereof, have denied the allegations made in the petition that deceased were working as labourers at the crusher of Gopal Sharma who had hired the tractor for carrying the stones and also that tractor was going to his crusher when it met with the accident as a result of rash and negligent driving of its driver Roshan Lal. It is stated that at the time of accident nobody was sitting in the tractor. The accident had taken place due to sudden mechanical defect developed in the tractor as a result of which its front wheel came out of the axle and it took the turn and rolled down the road and at that place "two persons were found injured. It appears that those persons might be sitting by the side of the road at the time and place of accident. Therefore, either they themselves jumped from the road and fell down below the road". The other allegations about the income of the deceased and dependency of the respondents-claimants was also denied The respondent-Insurance Company filed a separate reply and took preliminary objection that particulars of insurance policy were not disclosed in the petitions, as such, they could not file effective reply and that the tractor which is exempted from token tax was meant only for carrying agriculture and forest produce and since it was carrying passengers at the time of accident it committed breach of the terms and conditions of Insurance policy absolving the Insurance Company from its liability. On merits the accident was denied on the ground that the owner failed to lodge third party claim as well as his own damage of the vehicle It is reiterated that since there was a breach of terms and conditions of Insurance policy and the vehicle was not being used for the purpose it was insured and carrying gratuitous passengers, the insurance company was not liable to indemnify the insurer.

5. On the pleadings of the parties the following issues were framed in claim petition No. 4 and claim petition No. 3 respectively ; "1. Whether Beli Ram died on account of the rash and negligent driving of the tractor bearing No. HIL 4605 driven by respondent No. 2 Shri Roshan Lal ? OPP

2. Whether the said tractor was insured with respondent No. 3f if so its ef