The deceased was assisting in agricultural work on an insured vehicle, not a gratuitous passenger, thus the insurance company is liable for compensation.

JUDGMENT

This Civil Miscellaneous Appeal has been preferred as against the order passed in M.C.O.P.No.116 of 2013 on the file of the Motor Accident Claims Tribunal cum Principal Sub Judge, Kumbakonam, wherein the respondents 1 to 4 herein have filed a petition before the Tribunal claiming compensation for the death of one minor Appu @ Ranjith Kumar.

2. The Tribunal has awarded a sum of Rs.4,10,000/- towards compensation and directed the second respondent to pay the amount to the petitioners and recover the same from the respondents 3 to 6. As against the liability, the present Civil Miscellaneous Appeal has been preferred by the second respondent / Insurance Company.

3. For the sake of convenience and brevity, the parties herein after will be referred to as per their status / ranking in the Tribunal.

4. The brief facts of the case before the Tribunal are as follows:

The first and second respondents are parents of the deceased Appu @ Ranjith Kumar and the third and fourth petitioners are brother and sister of the deceased. The deceased was aged about 14 years on the date of accident. On 06.05.2011 at about 10.00 am, the petitioners 3 and 4 along with the deceased went to Kudithangi for summer vacation. At the time, the driver of the first respondent drove the tractor for agricultural purpose and the deceased Appu @ Ranjith Kumar also went along with him as Assistant when the tractor was ploughing. The deceased fell down from the tractor and sustained injuries and thereafter, he died. The accident took place due to the negligence on the part of the driver of the first respondent and the first respondent vehicle was insured with the second respondent on the date of accident. Therefore, the respondents are liable to pay compensation to the petitioners.

5. The counter averments of the second respondent are as follows:

The tractor of the first respondent was insured with the second respondent on the date of accident and the driver of the first respondent had no valid license to drive the vehicle. The age status of the deceased are not correct. The accident was happened in a private land. Thereby, the Insurance Company is not liable to pay compensation. The accident was caused solely due to the negligence of the deceased alone. The deceased was travelled on the mudguard of the tractor. Therefore, the second respondent is not liable to pay any compensation to the petitioner.

6. Before the Tribunal, on the side of the petitioners, they have examined P.W.1 and P.W.2 and marked Exhibits P.1 to P.4. On the side of the respondents, they examined R.W.1 and marked Exhibit R.1.

7. The Tribunal after considering the evidences adduced on either side, awarded compensation by directing the second respondent to pay the amount and recover the same from the respondents 3 to 6 under the doctrine of pay and recover. Aggrieved by the said order, the present Civil Miscellaneous Appeal has been preferred by the second respondent /

Insurance Company.

8. The learned Counsel appearing for the appellant / second respondent would contend that the deceased was travelled as gratuitous passengers in the tractor and the accident was occurred only due to the negligence on the part of the deceased and thereby, the second respondent / Insurance Company is noway liable to pay compensation to the petitioners. But the Tribunal without considering the above said aspect, erroneously awarded compensation and directed the second respondent to pay and recover the same from the owner of the vehicle. Therefore, the order passed by the Tribunal is liable to be set aside.

9. To support the contention of the learned Counsel appearing for the appellant / second respondent, he has relied upon the following judgments:

1. National Insurance Company Limited Vs. Kottam reported in

2003 (2) T.A.C. 849 (Kerala), 2. National Insurance Company Limited Vs. V.Chinnamma and Others reported in 2004 (2) TANMAC 123 (SC), 3. United India Insurance Company Limited Vs. Kamodi Bai and Others reported in 200