JUDGMENT :

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree, dated 28.11.2011, made in M.A.C.T.O.P.No.36 of 2009 on the file of the Motor Accidents Claims Tribunal - II Additional Sub Court, Nagarcoil.)

1. This Civil Miscellaneous Appeal is filed against the award passed in M.A.C.T.O.P.No.36 of 2009 on the file of the Motor Accidents Claims Tribunal, II Additional Sub Court, Nagarcoil.

2. The appellant herein was the third respondent, the respondents 1 to 3 herein were the claimants, the fourth respondent herein was the first respondent and the fifth respondent herein was the second respondent in the original claim petition in M.A.C.T.O.P.No.36 of 2009.

3. Brief substance of the petition in M.A.C.T.O.P.No.36 of 2009 is as follows:-

The deceased was working as Hitachi Machine operator in Vinayaka Earth Moving and Lorry Services and he was earning Rs.5,000/- per month as salary and Rs.100/- as daily battta. The second respondent is the owner of the Tractor bearing Registration No.TN-72-R-4288. On 01.10.2004, at about 19.00 hours, the first respondent drove the vehicle in a rash and negligent manner, due to the impact, the deceased fell down from the Tractor and he sustained injuries and he died on the spot. The petitioners are his dependents and they claimed a sum of Rs.8,00,000/- as compensation.

4. Brief substance of the counter of the third respondent in M.A.C.T.O.P.No.36 of 2009 is as follows:-

The vehicle was permitted to be used only for agricultural purpose. But, the respondents 1 and 2 permitted the deceased to travel in the Tractor tool box. The seating capacity of a Tractor is only for the driver. Allowing the deceased to travel in the Tractor is a violation of policy condition. The Tractor was not used for agricultural purpose, at the time of accident. This respondent is not liable to pay compensation.

5. On the side of the petitioners, three witnesses were examined and eight documents were marked. On the side of the respondents, no witness was examined and two documents were marked.

6. The Tribunal after considering both sides, awarded a sum of Rs.6,12,000/- as compensation to the claimants. Against the award, the Insurance Company has filed this Civil Miscellaneous Appeal.

7. On the side of the appellant, it is stated that the Tractor is not permitted to carry passengers. The deceased violated the policy conditions. The deceased travelled on the mudguard of the Tractor and he tried to open the tool box, which was placed under the mudguard, while the vehicle was moving and the deceased died due to his own negligence. The award is excessive.

8. On the side of the appellant, it is further stated that the policy is a farmers package policy and that only the driver is competent to travel in the Tractor and that the vehicle was not used for agricultural purpose, at the time of accident and that the deceased was not covered by the policy, as there was no seating capacity to carry a passenger and that the deceased also is liable for contributory negligence.

9. A judgment of the Hon'ble Supreme Court reported in 2007 (2) T.A.C.- 8 (SC) [New India Assurance Co.Ltd., V. Vedwati and others], wherein, it is stated as follows:

“14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.”

10. Another judgment of this Court reported in 2009 (2) T.A.C.-711 (Madras) [National Insurance Co. Ltd., V. Benit Rose and others] is cited. Judgment of this Court reported in 2011 (1) T.A.C.-953 (Madras) [Iffco-Tokio General Insurance Co. Ltd., V. Sulochana and others], wherein, it is stated as follows:-

“1. The allegations found in the Claim Petition are as follows:

The first and second applicants are parents of Jalander aged 20 who was working under the first opposite party in a t