ORDER

This appeal under section 173 of the Motor Vehicles Act, 1988 has been filed by appellants/claimants against award dated 23.07.2007 passed by the Member, Second Additional Motor Accidents Claims Tribunal, Vidisha in Motor Claim Case No.53/2007 [Hari Narayan and others Vs. Halku and others], by which, claim petition filed by the appellant was partly allowed and compensation of Rs.1,72,000/- was directed to be paid on account of death of their son (Manoj) and payment was directed to be made by respondent No.3/Insurance Company and recover the same from the respondent No.2/owner of the Tractor (MP-40/M-7611).

2. In this appeal filed by the appellant, the respondents No.1 & 2 have filed cross-objection stating that no accident took place as alleged, but if the Tribunal finds that claimants are entitled to compensation, the respondent/Insurance Company should pay the amount as Tractor was being driven by Pehalwan and not by Halku.

Pehalwan had a valid driving licence. As the deceased was unmarried, 50% of the award amount should have been deducted. The respondent No.3/Insurance Company has also filed cross-objection on 04.3.2017 by submitting that there is breach of Insurance Policy as the Tractor was being driven at the time of accident by respondent No.1 (son of respondent No.2-owner) without holding valid licence and was only possessing learner’s licence (Exhibit-D/5 whose particulars are in Exhibit-D/7). Hence, no pay & recover order could have been made. On 11.4.2017 the Insurance Company filed an application under section 5 of the Limitation Act in support of cross-objection.

3. In short, the appeal has been filed on the ground that wages have been taken on lower side. No written statement of respondent No.1 was filed and he was treated ex parte on 21.2.2007. The respondent No.2 in written statement submitted that respondent No.1 was not engaged as a Driver. The driver was Pehalwan Singh. The appellant No.1-Harinarayan Sharma examined himself as Applicant Witness No.1. The respondent/Non-applicant No.3/Insurance Company examined Rajesh Rathore (Investigator for Insurance Company) as Non-Applicant Witness No.1 and M.S.Kripashanker (Staff of Insurance Company) as NA.W-2. The respondent No.2 examined Pehalwan Singh as NA.W-3 and Bhawani (himself) as NA.W-4. The applicants/claimants examined documents Exhibits-P/1 to P/8. The respondents/non-applicants exhibited D/1 to D/7 documents. Therefore, prayer has been made to enhance the amount of compensation by claimants. It is further submitted that Tribunal erred in exonerating the Insurance Company on the ground that deceased was travelling on Mudgaurd of the Tractor as there was no seat in the Tractor except for Driver but this situation is very rampant in India and farmers do go in this way.

4. The Respondent No.2 has filed cross-objection and has submitted that Pehalwan Singh was driving the vehicle, but it has not been taken into consideration inspite of statement in the Tribunal. Only 50% of the amount was to be given as younger brother and father cannot be taken to be dependants on deceased. Learned counsel respondent No.2 (owner of the vehicle) also submitted that Tractor was being used for agriculture work.

5. The respondent No.3/Insurance Company submitted that there is breach of Insurance Policy and hence, it can be totally exonerated and order for pay & recover can be made.

6. Regarding finding of the Tribunal on Issue No.5, whether there was breach of Policy or not, it is seen that before the award of Tribunal it was deposed by claimant-Harinarayan Sharma on 21.6.2007 that deceased-Manoj on 05.11.2006 was going on tractor for getting his field ploughed when Non-applicant No.1/Halku @ Chotu s/o Bhawani drove the tractor rashly and negligently,