K. L. SRIVASTAVA, J.

( 1 ) THIS order shall also dispose of the Misc. Appeal No. 55 of 1981 filed by the Insurer against the one and the same award dated 17-11-1980 passed by the Motor Accident Claims Tribunal Ratlam in Claim Case No. 16 of 1977.

( 2 ) IT may be stated at the outset that the appeal No. 26 of 1981 is by the owners of the accident vehicle and the other appeal is by the insurer. The claimants have filed cross-objections.

( 3 ) FOR the purpose of these appeals it is no longer in controversy that the tractor bearing Registration No. MPU 5571 belonging to Shivlal and Kanhaiyalal (the appellants in appeal No. 26/81) was involved in an accident and had turned turtle at about 11. 30 a. m. on 24-4-77 on the road between Bibdod and Ratlam ahead of the culvert from Sagod. At the time of the accident the vehicle was being driven by Shivlal and was insured with the appellant in M. A. No. 55/81. Laxminarayan an agriculturist aged about 50 years who was travellingjby the tractor which had been brought to his field in connection with the boring of well there had met instant death as a result of the accident. The respondent Rukmabai is the widow of the said Laxminaryan and the minor respondents Radheshyam and Jagdish are his sons. ( 4 ) ACCORDING to the petition, the accident had occurred due to the negligence of Shivlal who at the relevant time was driving the tractor at excessive speed and had lost control over it [ when he was faced with a cow on the road. It was stated in the petition that the deceased was an agriculturist and also a milk vendor and used to make a net income of Rs. 5,000/-per year and looking to the history of longevity in the family, he would have lived up to the age of 90 years. Claim for compensation was laid as under :-

(i) Towards financial loss due to the premature death

Rs. 1,40,000. 00

(ii) Towards expenses for Misar

Rs. 5,000. 00

(iii) Towards mental agony to the claimants.

Rs. 5,000. 00

Total

Rs. 1,50,000. 00

( 5 ) THE two owners of the vehicle and its insurer filed separate written statements. According to the owners, the deceased had forcibly taken a seat in the tractor and the accident was not occasioned due to any negligence on the part of Shivlal. The quantum of compensation claimed was also challenged.

( 6 ) THE insurer denied its liability on the ground that the policy did not cover the risk of gratuitous passenger on the vehicle.

( 7 ) AT the conclusion of the trial, the learned Tribunal held that the aforesaid accident was occasioned due to the negligence of Shivlal. Determining the annual dependency of the aforesaid L. Rs. at Rs. 2,000/- per year, a net amount of Rs. 32,000/- was awarded against the appellants after deduction at the rate of 15% on account of lump sum payment.

( 8 ) AGGRIEVED by the award, the insurer and the owners have preferred the aforesaid appeals. The L. Rs, of the deceased Laxminarayan have preferred cross-objection and have prayed for enhancement of the sum awarded.

( 9 ) THE points of determination are as under :- (i) Whether the learned Tribunal erred in holding that the accident was occasioned due to the negligence of the appellant Shivlal? (ii) Whether the learned Tribunal erred in holding that the insurer is liable for compensation? (iii) Whether the amount awarded is too low and requires to be enhanced.

( 10 ) THE learned counsel for the appellants in M. A. 26/81 contends that on the question of negligence there is variance between pleading and proof and the learned Tribunal has erred in recording a finding about negligence, on the part of Shivlal. He urges that according to the petition, the accident had occurred as a cow had come on the road and the driver of the vehicle was unable to control it due to excessive speed. The evidence of Susheel Kumar (P. W. 2) however, is that he had not sighted any cow at the time of the accident and the tractor had turned turtle as it was being driven at an excessive speed and the driver while bowing to the God Hanuman in the t

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