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2. Ld. Advocate Mr. Palak Thakkar appearing for the Appellant herein, would submit that Ld. Trial Court has committed error apparent on the face of the record, more particularly, when it is the case of the Org. Applicant that the deceased Mohanbhai was traveling by siting on the mudguard of the Tractor as an unauthorized passenger. It is further submitted that the insured trolley does not cover the risk of such unauthorized passenger. That there is a breach of terms and conditions of the insurance policy and therefore, also the Tribunal committed grave error in allowing the claim of the applicants. It is further submitted that the sitting capacity including driver of the Tractor is only one and therefore, no person other then driver of the tractor is allowed on the tractor. It is further submitted that on perusal of the FIR at Exh. 30 and the oral evidence of the present Respondent and Org. Claimant No. 1, the deceased was traveling in the Tractor by siting on the mudguard of the tractor is clearly established however, the Tribunal has materially erred in allowing the claim petition. Thus, the Tribunal ought to have rejected the Claim Petition of the Org. Claimants. That the Trial Court has further materially erred in holding that the deceased was working as labourer in Tractor or was traveling in the capacity as a labourer in the tractor and in absence of any pleading to the effect that the deceased was working as a labourer, the Ld. Tribunal ought to have rejected the Claim Petition. The last ground which has been contended by the Ld. Advocate that the Ld. Trial Court erred in awarding more compensation then what it was originally prayed for in the Claim Petition and as thus, argued to allowed the NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined present Appeal.

Though, served none appears for respondent No. 5 herein (Owner of tractor).

5. Heard Ld. Advocates for the respective parties.

NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined 5.1 The factum of accident, deceased Mohanbhai Adivasi traveling by seating on the mudguard of the tractor and complaint to that effect is clearly surfacing on the record of the case. It is also not in the dispute that certificate of registration of the alleged vehicle reflects seating capacity including driver as only one. It is also evident from the order passed by the Ld. Tribunal wherein it is observed that it was the duty of the driver to see that no person seats on the mudguard of the tractor. It is also evident from the cross examination of the Claimant at Exh. 27, wherein, Kaliben Mohanbhai Adivasi has admitted that his husband was traveling on the mudguard of the tractor as stated in the claim Petition as well as the complaint and in police statement. If the complaint Exh. 13 is also taken into consideration, it is clearly stated that the driver of the tractor was driving the tractor negligently and at full speed and as and when they reached near Cosmoplex Cinema, Mohanbhai suddenly fell down.

5.2 It is also required to be noted that in the claim Petition exhibit 1 , the Applicant narrated the said fact in para 10 by interalia stating the facts of the incident that the deceased Mohanbhai was seating on the mudguard of the tractor No. GJ-11-W-5139 which was attached with trolley No. GJ-11-M-637.

5.3 Undoubtedly in the present case, on perusal of the claim Petition, Exh. 1, the FIR Exh. 35, the Cross Examination of Kaliben Exh. 27 clearly proves that the deceased was seating on the fender/mudguard of the NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined tractor. However, it is also required to be noted that the factum of trolley being attached to the tractor and insurance under the Workmen Compensation Act for five labourers is not denied which is evident from Exh. 41. Under such circumstances, the question which requires to be decided as to whether the Insurance Company is liable to pay the compensation to the legal heirs of the deceased and as to whether the deceased Mohanbhai was traveling as a gratuitous passenger on the fender of the tractor or was a labourer attached with the tractor and trolley?

In the case on hand though the deceased was traveling on the tractor by sitting on the fender/mudguard however the factum of Insurance premium was paid under W.C Act for 5 labourers for the trailor attached with the tractor and the deceased working as a labourer is proved. It is however, undisputed fact in the present case that the deceased was sitting on the fender/mudguard. In the case of Shivraj (Supra) it was found that the claimant of that case traveled in the tractor and no additional insurance was taken in respect of the trailer and the presence of trailer was not shown or demonstrated in any of the documents and there was no evidence to demonstrate that the tractor was attached to a trailer still Hon'ble Supreme Court held in paragraph 10 as follows: