JUDGMENT

This Civil Miscellaneous Appeal has been filed by the Insurance Company challenging direction to indemnify the first respondent, owner of the vehicle to pay compensation ordered in its award dated 06.01.2021 in M.C.O.P.No.2886 of 2017 on the file of MACT (I Additional District and Sessions Judge, Cuddalore.

2. For the sake of convenience, the parties are referred to herein according to their litigative status and rank before the Tribunal.

3. The case of the claimant is that the first claimant's husband namely Nagappan travelled in a tractor as a Loadman in the first respondent's tractor by sitting on the mud guard of the tractor. When the tractor was nearing the land of Sivaperumal, Annathanapettai, the driver of the tractor drove it in rash and negligent manner. As a result, the deceased fell down from the tractor and sustained fatal injuries. Subsequently he succumb to injuries. This was the cause of the death of the deceased Nagappan. The first petitioner is the wife of the deceased, the second and third petitioners were the sons of the deceased and the fourth petitioner is the mother of the deceased came for seeking compensation of Rs.10,00,000/-.

4. The first respondent - owner of the tractor has not contested and remained exparte. The second respondent - Insurer of the vehicle contended that driver of the vehicle does not possess a valid license. When the deceased travelled in the tractor by sitting in the mud guard, he becomes an unauthorised person and so there is violation of policy condition. They also disputed the age, income of the deceased and also dependency of the claimants.

5. The Tribunal after considering the evidence, placed on the record held that the driver of the tractor has negligently driven the vehicle which resulted in accident, the Tribunal has also held that deceased was neither an Agricultural coolie nor a load man and he is an unauthorised traveller in the tractor. But the Tribunal has directed the Insurance company to pay compensation and to recover the same from the Respondent-1.

6. The Tribunal quantified the compensation and awarded Rs.5,00,000/- as compensation. The Insurance company has filed this appeal on the ground that since deceased has travelled in mud guard as unauthorised passenger, the Insurance company need not indemnify the first respondent and he has relied judgment of this Court in the case of Bharti Axa General Insurance Company Limited vs. Aandi and Others reported in 2018 (2) TN MAC 731 (DB) wherein this Court while considering the liability of the Insurance company to indemnify the first respondent where the deceased therein was an unauthorised person travelled in tractor has held that the seating capacity of the tractor is only one person and any other person who is travelling either in mud guard or in any other place is only an unauthorised passenger and they are not entitled to compensation.

7. The Division Bench of this Court in Bharati AXA General Insurance Co. Ltd. Vs. Aandi and others, [2018 (2) TN MAC 731 (DB)] has considered the Apex Court judgment of New India Assurance Co., Ltd -vs- Asha Rani reported in (2001) 3 ACJ 1847 and other previous judgments has held that for death or injury of a passenger/ gratuitous passenger in a goods vehicle, the insurer cannot be held liable and the insurer cannot even be directed to pay and recover the award amount where the policy is required to cover only certain classes of persons and there is no mandatory requirement for the insurer to cover persons travelling as passengers in goods vehicle unless the occupant is the authorised representative or the owner of the goods accompanying the goods. Wherein, in this case, there is clear violation of policy condition that five persons were allowed to travel in the goods area of the offending vehicle and there is also no evidence to show that the claimant travelled in the offending goods vehicle as owner of his goods. Hence, this Court is of the view that the claimant is entitled to