The main legal point established in the judgment is the requirement to prove negligence and liability under the Motor Vehicles Act and the Workmen's Compensation Act.

JUDGMENT :

Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed by the learned Sub Judge, Neyveli dated 19.09.2016 in M.C.O.P.No.84 of 2014.

1. Appeal against the dismissal of the claim petition is filed by the legal heirs of the accident victim, assailing the reason given by the Tribunal for dismissing their petition.

2. On 07/02/2012, at about 11.00 am, opposite to the house of one Venkatesan, the deceased Thamilarasan was unloading the hay from the stationed trailer attached to the tractor. Suddenly, the driver of the tractor moved the tractor recklessly, while Thamilarasan was unloading the hay. Thamilarasan lost his balance and fell down from the trailer. He sustained grievous injuries over his vital organs. He was admitted in the hospital and treated as inpatient. At the hospital, he succumbed to the injuries on 29/02/2012. At the time of his death, he was 32 years old. He was earning Rs.15,000/- per month as loadman. His wife, minor son and mother were depending on his income. Hence, claim of Rs.15,00,000/- was sought as compensation against the tractor owner and its insurer.

3. The Insurance Company contested the claim on the ground that the deceased was an unauthorised passenger. The accident occurred, when the tractor was stationed and the driver of the tractor was standing near the tractor. Thamilarasan fell from the trailer, which is not insured with the second respondent. The police, who investigated the criminal case against the tractor driver, closed the case as mistake of fact. The amount claimed as compensation is excessive. The claimants have to prove that they are the dependants of the deceased.

4. The claimants to prove the case examined 6 witnesses and marked 6 exhibits. On the side of the respondents, 3 witnesses were examined and 4 exhibits were marked.

5. The Trial Court, after considering the evidence, held that the accident occurred due to the negligence of Thamilarasan, who fell down from the hay load. When he slipped from the load while un-tying the rope, sustained head injury. Since it is proved that the vehicle was not moving, the driver of the tractor cannot be held to be negligent. Therefore, neither the owner of the tractor nor the insurance company is liable to compensate.

6. The learned counsel for the appellants submitted that the dismissal of the claim petition is erroneous on facts and law. The Tribunal erred in overlooking the evidence of PW-2, who witnessed the accident and the fact that the accident occurred during the course of employment involving a motor vehicle. PW-6 is the doctor who recorded the accident register has deposed that the victim informed him that he fell down, when the driver of the tractor moved the tractor and the same is recorded in Ex R-3.

7. The Tribunal failed to note that the tipper loaded with hay attached to the tractor is part of tractor. The same ought to have been treated as one unit. Fall from the tipper is a motor vehicle accident and the Tribunal ought not to have disallow the claim in toto. The contribution of the tractor and its driver ought to have been taken note by the tribunal.

8. The Tribunal erred in not considering the fact that the victim died while unloading the hay from the motor vehicle. As such, he is the employee of the vehicle owner. The claimants had option to claim compensation either under the Workman Compensation Act (or) under the Motor Wehicles Act as per Section 167 of Motor Vehicle Act. The claimants opted to proceed under the Motor Vehicles Act. Being a welfare legislation, the Court is empowered to convert the claim under Workman compensation Act and pay compensation.

9. In support of his submission, the learned counsel for the appellants relied upon the following judgments:-

(1) In Oriental Insurance Co Ltd vs. V.Bhuvaneswari : 2019 (1) TN MAC 72 (DB); Para 9 and 10 reads as below:-

“9. It is not in dispute about the manner of the accident and the primord