ORDER

This order shall govern disposal of M.A.No. 1230/2008 and

1239/20081 as both these appeals arise out of common award dated 28/7/2008 passed by Additional Motor Accident Claims Tribunal, Lahar, District Bhind in Claim Case No. 40/2007.

2. M.A.No. 1230/2008 has been filed by Insurance Company; whereas, M.A.No. 1239/2008 has been filed by the claimants seeking enhancement in the compensation amount.

3. By the impugned award Claims Tribunal has awarded a compensation of Rs. 1 Lac alongwith interest at the rate of 6% per annum to the claimants/parents of the deceased Hanif alias Sharukh, who succumbed to the injuries sustained by him in road accident dated

14/7/2007.

4. Briefly stated facts of the case are that on 14/7/2007 when son of claimants namely Hanif alias Sharukh, aged 13 Years, was playing by the side of Doordarshan Kendra, it is alleged that due to rash and negligent driving of tractor driver Pintu alias Mazid, tractor turned turtle over the deceased and he was crashed and died on spot. Therefore, claimants parents of the deceased filed a claim petition before the Claims Tribunal seeking a compensation of Rs. 11,00,000/-; however, by the impugned award, learned Claims Tribunal awarded a compensation of Rs. 1 lac and while exonerating the Insurance Company from the liability of payment of compensation amount, fastened the liability of payment of compensation amount over driver and owner of the offending vehicle; however, Insurance Company was directed to make the payment of compensation amount first to claimants and thereafter recover the same from the owner and driver of offending vehicle under the principle 'pay and recover'. Therefore, Insurance Company is before this Court challenging the finding of Claims Tribunal as regards direction of pay and recover; whereas, claimants are before this Court seeking enhancement in the compensation amount.

5. It is the submission of learned counsel for the Insurance Company that the deceased was sitting on the mudguard of the tractor when the tractor got turtle and therefore, under Regulation 28 of the Rules of Road Regulation, the travelling on the tractor; except the driver is not permissible. Regulation 28 reads as under:- “Driver of tractors and goods vehicles.- A driver when driving a tractor shall not carry or allow any person to be carried on the tractor....”

Therefore, the risk of passenger travelling on the mudguard, which is not a place for sitting on tractor is not covered and therefore, solely driver and owner of the tractor are responsible for payment of compensation amount and Insurance Company cannot be held liable for payment of compensation amount under the Principle 'pay and recover'. In support of his contentions he relied upon decision of this Court in the matter of National Insurance Company Ltd. Vs. Bakaridan and Ors., 2017(1)TAC24(MP).

6. Whereas, M.A.No. 1239/2008 has been filed by claimants that claimants proved before the Claims Tribunal by evidence that while their son was playing by the side of Doordarshan Kendra, due to rash and negligent driving of tractor driver, tractor turned turtle over the deceased due to which he died and he was not travelling on the tractor by sitting on mudguard, therefore, Claims Tribunal erred in giving finding that deceased was travelling on the mudguard of the tractor. It is further submitted that learned Claims Tribunal erred in awarding compensation of Rs. 1 lac only whereas, in catena of decisions, in case of child death, Claims Tribunal has awarded compensation of Rs. 3 lacs under similar circumstances. It is further submitted that learned Claims Tribunal did not err in directing the Insurance Company to make the payment of compensation amount first to the claimants and thereafter recover the same from the owner and driver of the offending vehicle. In support of his contentions learned counsel for the claimants relied upon decision of Apex Court as well as this Court in the matter of V.Renganathan and Anr. Vs. The Branch