JUDGMENT :

(Prayer : Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, against the award and decree dated 26.10.2018 passed in M.C.O.P.No.41 of 2013 on the file of the Motor Accident Claims Tribunal/Subordinate Court, Vedasandur, Dindigul District.)

This appeal has been filed by the appellant/Insurance Company questioning the award passed by the Tribunal only on the ground of liability.

2. It is a case of fatal. The first and second respondents/claimants 1 and 2 are daughter and son of the deceased Kannammal. The third respondent herein/1st respondent is the owner of the vehicle. The fourth respondent/3rd respondent is the husband of the deceased Kannammal and father of the minor respondents 1 and 2 herein/Claimants. As the 4th respondent married another woman and abandoned the first and second respondents and also their mother ie., the deceased Kannammal, initially, he was not arrayed as a party in the claim petition, but subsequently he was added as a party respondent by filing a petition before the Tribunal. However, he filed an affidavit stating that he would not claim any share amount for the death of the deceased Kannammal.

3. On 27.02.2013, the deceased Kannammal said to have been travelled in a Tractor bearing Registration No.TN-57-AD-6321 attached with a Harvester Machine by sitting on the mudguard of the Tractor and due to rash and negligent driving of the driver of the Tractor, she fell down from the Tractor and the back side wheel of the Tractor ran over on the abdomen and leg of the deceased Kannammal, due to which she sustained grievous injuries and died on the way to the Hospital. At the time of the accident, the Tractor was insured with the appellant/Insurance Company. Therefore, the first and second respondents filed claim petition claiming a sum of Rs.12 lakhs as compensation against the owner of the vehicle and the appellant/Insurance Company.

4. Before the Tribunal, on the side of the claimants, two witnesses were examined as PW1 and PW2 and Exs.P1 to P4 were marked. On the side of the appellant/Insurance Company, three witnesses were examined as RW1 to RW3 and Exs.R1 and R2 were marked. On the side of the Court, Ex.C1 was marked.

5. After considering the oral and documentary evidence, the Tribunal has come to the conclusion that the driver of the Tractor was solely responsible for the accident and awarded a sum of Rs.10,94,000/- as compensation with 7.5% interest. The Tribunal has further held that as the owner of the vehicle permitted the deceased Kannammal and few others to travel in the Tractor which was meant for agricultural purpose, in violation of the Policy condition, the Insurance Company shall satisfy the award and then to recover the same from the owner of the vehicle. Aggrieved over fastening of liability on the Insurance Company to pay and recover from the owner of the vehicle, the appellant/Insurance Company has come up with this appeal.

6. The learned counsel appearing for the appellant/Insurance Company submitted that the Tractor is a single seated vehicle and the Tractor is not a goods vehicle. The Tractor is permitted to be used only for agricultural purpose. By permitting the deceased Kannammal and few others to sit on the mudguard of the Tractor, the third respondent/ owner of the vehicle violated the terms and conditions of the Insurance Policy. Therefore, the owner of the vehicle alone is liable to pay the compensation. Fastening of liability on the Insurer to pay the compensation is not proper and hence, the same is liable to be set aside. Though the appellant/Insurance Company disputed the entire liability, the Tribunal has ordered pay and recovery holding that the counsel for the Insurance Company has argued only for pay and recovery. The appellant/Insurance Company has never accepted for pay and recovery and therefore, the said finding of the Tribunal is liable to be set aside and consequently, the appellant/Insurance Company is liable to be exonerat