Parents are entitled to compensation as legal representatives of their deceased son in a motor vehicle accident, even if they were not dependent on him.

S.K. Dubey, J.

1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act'), against the award dated 16.1.1995, passed in Claim Case No. 54 of 1990 by V Additional Motor Accidents Claims Tribunal, Raipur.

2. Brief facts giving rise to this appeal are thus: Appellants are the parents who along with Nirmalabai, the widow of the deceased Ishwari Prasad, the son of the appellants, filed an application under Section 110-A of the Motor Vehicles Act, 1939 (for short 'Act of 1939') to claim compensation of Rs. 2,37,500/- for the death of Ishwari Prasad caused in motor accident occurred on 27.12.1987 by the use of tractor No. MKS 9373 and its trolley driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. At the relevant time, the deceased was sitting on the tractor, while other co-agricultural labourers were sitting in trolley. At about 2.30 a.m., when tractor was near Dhanoli on Gharsiwa-Raipur road, the tractor turned turtle because of the breakage of the connecting rod of tractor-trolley. The respondent No. 1 remained ex pane before the Tribunal. The respondent Nos. 2 and 3 contested the claim. The respondent No. 2 in his reply submitted that Nirmalabai has remarried, therefore, she has ceased to be a legal representative of the deceased. Therefore, her name be deleted. As to entitlement of parents it was submitted that parents are not the dependants, are not entitled to compensation. Rash and negligent act on the part of the tractor driver was denied and the plea of inevitable accident due to mechanical breakdown, i.e., breakage of connecting rod was raised. The respondent No. 3 in its reply, besides denying the claim and stating that the accident was not caused due to any rash and negligent act of the driver, the accident was inevitable due to latent mechanical defect, contended that the deceased himself was negligent and responsible for his death as he was sitting on the mudguard. In any case, the respondent No. 3 cannot be made liable to pay compensation as in terms of the policy the tractor was insured for agricultural and forestry purpose and not for carrying the passengers.

3. On objection of the respondents that Nirmalabai has remarried with one Santram on 23.12.1988 her name was deleted from the array of applicants.

4. The Tribunal after appreciation of evidence adduced held that the claimants have failed to establish the negligence on the part of the tractor driver as the witnesses examined by the appellants who were sitting in the trolley did not state the manner in which the accident occurred as they were drowsy when the tractor turtled, they woke up and saw the deceased lying. The speed of the tractor-trolley could not have been more than 20-25 km. per hour. Considering the statement of witnesses that at the place of accident road is wide, it cannot be presumed that the tractor was not in control of the driver. The deceased was sitting on the mudguard against the terms of the policy Exh. D-1, hence, the insurance company would not be liable to pay compensation.

5. Having heard Mr. Awadh Tripathi, learned Counsel for the appellants, Mr. H.B. Agarwal, learned Counsel for the respondent No. 1 and Mr. H.S. Ruprah and Mrs. Amrit Ruprah, learned Counsel for respondent No. 3, we are of the opinion that this appeal deserves to be allowed.

6. The death of Ishwari Prasad caused in motor accident by the use of tractor-trolley is not disputed. The defence of the owner and insurer is that the accident was inevitable due to mechanical breakdown, i.e., breakage of the connecting hooks coupling the trolley with the tractor, as a result of which though the trolley remained standstill but the tractor turned turtle. It is well settled that in order to succeed in defence that the accident was due to a mechanical defect, the owner of a vehicle has to prove that he had taken all necessary precautions to keep the motor vehicle in a roadworthy condition and that the defect occ