Judgment :- On 28. 1998 at about 3.30 p.m. in K.N.Palayam Village, Nall itteri at Malayalankurai field, first respondent/8th respondent herein drove the Tractor bearing Registration No.TAR 9068 in a rash and negligent manner by means of which the cleaner Vellayyan, who was sitting in the Tractor near the driver on the back wheel mudguard, fell down inside the well and was taken to Sathyamangalam Government Hospital where he died. The 9th respondent was insurer of the tractor. Case in Cr.No.381/98 was also registered. The deceased Vellayyan was earning Rs.3,000/- per month by working as cleaner under the second respondent/owner of the tractor. The first claimant is wife of Vellayyan, 2 to 5 claimants are their children and claimants 6 and 7 are parents of deceased. A sum of Rs.4,00,000/- is prayed for as compensation. 2. In the Counter filed by the third respondent/vehicle owner, it is alleged that the claimants are put to strict proof of the allegations with regard to age, avocation and income of the deceased. They have to also establish that Vellayyan was working as cleaner under second respondent. It must also be proved that Vellayyan was sitting on the mud-guard at the time of accident and he fell down in the well due to negligence of the first respondent. It is denied that he was cleaner under second respondent and no relationship of employee and employer between them. The driver under the direction of the owner of the vehicle went to the field of one Senniyappa Gounder in Kondareddypalayam. First respondent placed the Tractor 50 feet away from the well and switched off the engine and then went to his relative’s house. At that time Vellayyan came, sit on the drivers seat and started the engine without knowing how to drive the tractor. He mistakenly applied the reverse gear and drove it rashly. Hence he could not control the speed, by means of which the Tractor run on the back side and fell down in the well. Only due to the negligence on the part of Vellayyan, the accident took place, for which these respondents are not liable. The allegations found in the F.I.R. are false. Against the truth, the case was closed by the Sathyamangalam Police as mistake of fact. On humanitarian ground the second respondent deposited Rs.10,000/- each in the names of minor children of the deceased Vellayyan on 19. The allegations found in the F.I.R. are false. Against the truth, the case was closed by the Sathyamangalam Police as mistake of fact. On humanitarian ground the second respondent deposited Rs.10,000/- each in the names of minor children of the deceased Vellayyan on 19. 98, for a period of three years. Hence the claim is not sustainable. The petition has to be dismissed. 3. In the counter filed by the third respondent/appellant herein, it is stated that it is false to state that the deceased was sitting near the driver on the mud-guard. It is known from F.I.R. that the accident took place due to rashness on the part of Vellayyan. He had no license to drive any vehicle. At the time of accident there was no R.C. or F.C. for the tractor. This respondent is not responsible to pay compensation. Hence, the petition has to be dismissed. 4. After analyzing the evidence on record, the Tribunal has arrived at a conclusion that the accident took place due to rash and negligence of the driver of tractor, accepting the claimants’ contentions. The Tribunal has scrutinized the oral evidence and rendered findings. 5. One Giriappan @ Gandhi first informant to the F.I.R., has stated that while he was working in Chenniappa Gounder field, driver Ramasamy stopped the tractor near the farm house and left the place; that one Vellayyan came, sat on the tractor and started it and the tractor proceeded on the back side and that it fell down in the well alongwith Vellayyan on it. The first informant was not examined before the Court. The rough site plan with reference to the place of occurrence would show that the distance between the well and the farm house is only 20 feet. However, it is not indicated that where the tractor was stationed. Any way it is in evidence that it was stopped by the first respondent 50 feet away from the well. Ex.P.2 is the final report lodged by the police in which it is stated that Vellaiyan did not know driving, who sat on the driver seat and negligently drove the vehicle which led to the fatal accident. The police have closed the case as mistake of fact. 6. It is P.W.2 who claims that he witnessed the occurrence. Ex.P.2 is the final report lodged by the police in which it is stated that Vellaiyan did not know driving, who sat on the driver seat and negligently drove the vehicle which led to the fatal accident. The police have closed the case as mistake of fact. 6. It is P.W.2 who claims that he witnessed the occurrence. He would say that while he was going for work in Malayalankuarai field, Ramasamy driver started the Tractor, Vellayyan was standing nearby and the driver asked him to sit on the tractor, he sit on the tractor, that the tractor was going backwards and when it was about to fell inside the well, driver jumped and escaped and that the tractor fell in the well with Vellayyan. He further says that the accident took place due to the negligence on the part of the driver. In the cross examination he deposed that Vellayyan was his brother-in-law and that Vellayyan was not cleaner under second respondent and that the distance between the well and the place where the tractor was standing might be 10 feet. 7. R.W.1 is the driver/first respondent who says that he stopped the tractor near Chenniappa Gounder house and in his absence Vellayyan started the tractor, applied reverse gear and hence the tractor fell into the well. He also says that generally nobody would employ cleaner for tractor. The fact that the tractor had fallen down the well was not known to him personally but he was informed about the incident by others. In the cross examination he would say that he has to keep the tractor in a responsible manner till he entrusts the same with the owner. It is his further evidence that even though he is responsible to lay complaint as to the accident to the police, he did not do so. 8. The claimants contend that Vellayyan was cleaner under second respondent, while P.W.2 says that he was not cleaner. When the oral evidence on record are cumulatively considered, it comes to light that in the absence of first respondent/driver, Vellayyan had started the tractor and by that act the tractor came backwards and fell into the well. It could not be comprehended that while the tractor was about to fall in the well, the driver jumped out to escape from the accident. It could not be comprehended that while the tractor was about to fall in the well, the driver jumped out to escape from the accident. The probabilities would show that Vellayyan was negligent at the time of accident. 9. Admittedly Vellayyan did not possess any license to drive any vehicle. Learned counsel for the appellant would place reliance of the decision of the Honourable Supreme Court reported in 2008 TNMAC 294 (SC) [Sardari & Others vs. Sushil Kumar and others] in which Their Lordships have held that the owner would be liable for payment of compensation in a case where the driver was not have driving licence at all and that it was obligation on the part of the owner of the vehicle to take adequate care to see that the driver has appropriate license to drive vehicle. It is also held therein that if there be any breach of conditions of contract of the insurance, the Insurance Company would succeed. 10. Hence as per the principles laid down by the Supreme Court, if any condition in the policy is violated or if the owner allows a person to drive the said vehicle without licence, then the insurance company could not be fastened with the liability. 11. The learned counsel for the appellant also draws attention of this Court to a Division Bench decision of this Court in 1993 ACJ 522 [New India Assurance Co. Ltd., v. Meenal and others] in which it is clarified, if a driver of the car met with accident due to his own negligence, in the case of absence of pleading or proof by the claimants as to wrong or tort committed by the owner, the Insurance Company could not be made liable in the absence of any liability being imposed on the owner. 12. In 2007 ACJ 42 [Balkrishna Dayanoba Bankar v. Kisan Sawalram Padwal and others] a single Judge of the Bombay High Court has held that in a case of total negligence of the driver and when the driver himself is at fault, the Tribunal has committed an error in fixing the liability upon the owner. 13. The Tribunal has referred the Judgment of Punjab and Haryana High Court reported in 1995 ACJ 323 [New India Assurance Co. 13. The Tribunal has referred the Judgment of Punjab and Haryana High Court reported in 1995 ACJ 323 [New India Assurance Co. Ltd., vs. Kailash Nath Batnagar and others] in which when a truck was not being driven by a licenced person, no liability could be fastened on the Insurance Company. .14. The Apex Court in 1987 ACJ 411 [Skandia Insurance Co. Ltd., v. Kikilaben Chandravadan and others] involving identical circumstances, has held that unless the insured is at fault and is guilty of breach, the Insurer cannot escape from the obligation to indemnify the insured and that the insured place the vehicle in charge of a licensed driver, with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. It is held further as follows: ."It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is guilty of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise of infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promiser (the insured) committed a breach of his promise. Not when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver, with the express or implied mandate to drive himself it cannot be said that the insured is guilty of any breach." .15. The Supreme Court has observed that if there was no fault on the part of the owner/insured in case if he had directed his authorized driver to drive the vehicle and even if the driver was negligent, enabling some other person to operate the vehicle and if accident takes place then the owner could not be held liable, but responsibility for payment of compensation would be on the Insurance Company. Applying the above said principles to the case on hand, the second respondent owner has employed the driver possessing valid license and the driver left the vehicle facilitating a third person to operate it and by means of third partys negligence if the accident occurred, then the insured could not be found fault with and that he cannot be termed to violate the conditions. In the case dealt with by the Supreme court, the driver of the truck after unloading, had gone for bringing snacks from the opposite shop leaving the engine running, the ignition key was in the ignition lock and not in the cabin in the truck as alleged by the driver. The driver had handed over the control of the truck to the cleaner and the driver having been grossly negligent in leaving the truck with its running engine in the control of the cleaner, this being the immediate cause of accident, the insured was held vicariously liable along with the driver and the cleaner. 16. The facts in the present case are almost akin to the above said case. Vellayyan being an unauthorized and third party to the tractor not employed by the owner of the tractor, even unknowingly invited the accident, of course the driver did not know about it, still though the insured has not violated any policy conditions, he has authorised his driver to drive the vehicle, as per the decision of the Supreme Court, the Insurance Company has to be held liable. In this regard the finding of the Tribunal fastening the liability for causing the accident upon the first respondent is not at all accepted by this Court. 17. As far as the quantum of compensation assessed by the Tribunal is concerned, Rs.18,240/- has been fixed by the Tribunal as annual income of the deceased. It has been multiplied by 16 and dependency was fixed to Rs.2,91,840/-; Rs.5,000/- each for love and affection and funeral expenses; Rs.1,000/-has been granted for taxi expenses. In total Rs.3,02,840/- has been awarded by the Tribunal. In view of this Court the above said assessment of compensation is proper and there is no need to interfere with it. 18. It has been multiplied by 16 and dependency was fixed to Rs.2,91,840/-; Rs.5,000/- each for love and affection and funeral expenses; Rs.1,000/-has been granted for taxi expenses. In total Rs.3,02,840/- has been awarded by the Tribunal. In view of this Court the above said assessment of compensation is proper and there is no need to interfere with it. 18. In view of the above said observations contained in the Judgment the finding of the Tribunal as to fastening of liability upon the first respondent is set aside and the observation as to the quantum of compensation is confirmed. The direction of the Tribunal that the respondents 1 to 3 in the claim petition are jointly and severally liable is modified to the effect that respondents 2 and 3 are jointly liable. In other aspects, the award passed by the tribunal shall hold good. In fine, the appeal is dismissed. No costs.