Judgment :- 1. Both the MFA’s are directed against the judgment and award in MVC No.37/2002. 2. MFA No.213/2008 is filed by the insurer questioning the liability and MFA No.4906/2008 is by the claimant seeking enhancement of compensation. MFA Cross objection No.48/2010 is by the owner questioning the pay and recovery order. 3. There is an inordinate delay of 741 days in filing the cross objection. However, matter is considered on merit. 4. Facts leading to the case are; that on 13.12.2001 the deceased Somblibai and her brother Halesha Naika with some other workers had gone to Holehonnur to bring paddy straw for their own purpose. While returning back at about 7.30 pm when the tractor reached near the house of Somlibai, straw which was loaded in the trailer caught fire when it came into contact with the live electric line. Halesha Naika saw the fire and told the driver to take back the tractor. As a result of which Somlibai who was sitting on the left side mud guard of the tractor fell down and tractor ran over her body and deceased succumbed to injury. 5. The claim petition was contested by the insurer, interalia contended that the insurer is not liable to pay the compensation as the deceased was traveling on mud guard of the tractor. Secondly the tractor was also hired for transportation of the paddy straw whereas the tractor is registered as agricultural motor vehicle and it was not a transport vehicle. The Tribunal on consideration of the entire evidence relying on the decision reported in ILR 2004 SC 2409 held that insurance company is liable to pay the compensation, thereafter it can recover the amount from the owner. While holding so, the Tribunal also held that the owner of the vehicle has violated the terms and conditions of the policy as the deceased was allowed to sit on the mudguard and the accident occurred when she was traveling on tractor and awarded compensation of Rs.3,15,000/- with interest. 6. Against the said award both the claimant and the insurer have filed appeal and cross objections is filed by the owner. 7. 6. Against the said award both the claimant and the insurer have filed appeal and cross objections is filed by the owner. 7. Learned counsel appearing for the insurer submitted that the tractor as such is defined under the Motor Vehicles Act under Section 2 Sub Section 44 means the motor vehicle which is not self constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road roller. 8. Trailers is defined under Section 2 Clause 46 means any vehicle, other than a semi – trailer and a side – car, drawn or intended to be drawn by the motor vehicle. 9. He also relied on the motor vehicle definition under Section 2 (28) which means any mechanically propelled vehicle adapted for use upon roads whether power of propulsion is transmitted their to from an external and internal source and includes chassis to which a body has not been attracted and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a space type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centrimetres. 10. Referring to the definition of motor vehicle and definition of vehicle and submit that tractor by itself does not become passenger vehicle nor so constructed to carry any passenger other than the driver. Tractor attached to the trailer becomes a motor vehicle which is capable of pulling a trailer. He relief on the judgment of the Division Bench in MFA 12587/2006 dated 25th May 2011 and submitted that this Court considering the point whether the insurer is liable to satisfy the compensation to the claimant on account of death or injuries to the person traveling on mud guard of tractor, has held that the policy in respect of the engine of the tractor which has got only the seating capacity which is provided for the driver of the tractor, in other words when the engine is only one and the liability in respect of the driver, the division bench was opined that the Tribunal was not justified in fixing the liability on the insurance company. 11. As regards to the use of the agricultural vehicle, tractor for transport purpose is a clear violation. 11. As regards to the use of the agricultural vehicle, tractor for transport purpose is a clear violation. In this regard he relied on the complainant who is an eye witness to the incident has stated that the vehicle was on hire and submitted that even in case of hiring tractor and trailer for transportation, the insurer is not liable to pay the compensation on account of violation of the conditions of the policy and permit. 12. He relied on the judgment of Division Bench MFA No.682/2006 dated 27th May 2011 and submitted that if the policy covers the risk of the Tractor and Trailer only for use of agricultural purpose and agricultural operations, the insurer cannot made liable to pay compensation for the violation of the policy by using the tractor and trailer on hire. 13. Learned counsel appearing for the owner submitted that the deceased was the 3rd party. He contended the accident had not occurred due to the sitting on the mud guard. She sustained injury after she fell down and when the wheel of the tractor ran over her. Therefore, she became a 3rd party and insurer is liable to pay the compensation. To support his contention he relied on the judgment reported in 2007(1) KCCR 736 and submitted that this court in a case where a passenger alighted from the bus to regulate the traffic movement, the driver suddenly moved the bus, the front wheel of the bus ran over the foot of the said person and he sustained injury. In such cases it is held that the injury sustained by the claimant is not on account of traveling in the bus but as a 3rd party. He also relied on 2004 ACJ 1608 and submitted that when a passenger alighted from the goods vehicle, driver without giving sufficient time to get down of the vehicle, moved the vehicle and caused injury. In such case the claimant cannot be said that he sustained injury while traveling as a passenger but he is a 3rd party. Further contention of the learned counsel was owner is that the tractor by itself does not become a transport vehicle. It becomes transport vehicle only when a trailer is attached to the vehicle. In such case the claimant cannot be said that he sustained injury while traveling as a passenger but he is a 3rd party. Further contention of the learned counsel was owner is that the tractor by itself does not become a transport vehicle. It becomes transport vehicle only when a trailer is attached to the vehicle. In a goods transport vehicle six persons can travel and when it becomes a transport vehicle the owner is entitled to carry six persons (coolies), neither the tractor nor the trailer independently built to carry any passenger. As such merely because it has been found that the passenger was sitting on the mud guard sustained injury after falling down due to the movement of the vehicle cannot be said that, she was traveling in the vehicle and insurer is not liable to pay compensation. He also submitted that Section 66 of the Motor Vehicles Act requires permit for use of the vehicle, transport of goods and the explanation under Section 66 the vehicle which does not exceed the unladden weight of 3000 kgs such vehicle do not require any permit. 14. On the other hand learned counsel for the insurer submits that the violation is under regulation 28 of the Motor Vehicles Regulation Act. 15. Learned counsel for the claimant submit that the compensation awarded by the Tribunal is on the lower side as the income of the deceased is taken only at Rs.2,250/-per month and sought for enhancement of compensation. 16. The other contention of the learned counsel for the owner is that in case of the passenger travelling in the roof top of the bus, still this Court has held that he is a passenger and 50% compensation is fastened on the insurer as contributory negligence on the part of the driver of the bus. 17. In the light of the reliable contention the point that arise for consideration is that: (i) As to whether person travelling on the mud guard of the tractor, whether insurer is liable to indemnify the liability on the owner in case of the death or injuries sustained in the road accident. (ii) The person falling from the mud guard and thereafter sustaining injury becomes 3rd party. (iii) Whether hiring an agricultural tractor violates Section 66 of the Motor Vehicles Act and Regulation 28 of the Motor Vehicle Regulation Act. (ii) The person falling from the mud guard and thereafter sustaining injury becomes 3rd party. (iii) Whether hiring an agricultural tractor violates Section 66 of the Motor Vehicles Act and Regulation 28 of the Motor Vehicle Regulation Act. (iv) Whether the person travelling on mud guard also become an occupant of a tractor. 18. As far as the contention that tractor and trailer together becomes a transport vehicle and as such six persons can be carried in a tractor. Tractor is defined under Section 2 Clause 44 reads thus: Though it is a motor vehicle but the construction of a tractor does not provide any provision for carrying a passenger other than the driver. Tractor by itself does not become the transport vehicle without the trailer. 19. Trailer has also been defined under Section 2 Clause 46 which reads as follows: It is a light motor vehicle as defined under Section 2 Clause 21 which also reads as under: The passenger vehicle, goods transport vehicle, tractors are the vehicles by themselves. There cannot be any comparison with the transport vehicle, Goods Transport vehicle transportation. Tractor is constructed and manufactured only providing the engine and a driver and it does not provide any seat or a makes any provision to take any other persons. 20. The major vehicle is based on its sitting capacity, maximum weight etc., the insurer issues policy based on the nature and class of the vehicle. If the vehicle has only driving seat and no other provision. The insurer cover the risk of driver likewise in case of transport goods or passenger vehicle also the risk is covered based on the class and nature of the vehicle. If there is no provision of carrying any passenger, the tractor itself is not so constructed to carry and other person other than the driver, insurer cannot insure his risk. Division Bench of this Court in identical circumstance referred to above in MFA 12587/2006 at Para 10 which reads as under: We have perused the policy issued by the appellant. The appellant has collected a sum of Rs.25/- under the head, legal liability towards employee / driver. Admittedly, it is a tractor. Division Bench of this Court in identical circumstance referred to above in MFA 12587/2006 at Para 10 which reads as under: We have perused the policy issued by the appellant. The appellant has collected a sum of Rs.25/- under the head, legal liability towards employee / driver. Admittedly, it is a tractor. The policy is in respect of the engine of a tractor which has got only seating capacity which is provided for driver of the tractor in other words when seating capacity of the tractor engine and the liability is in respect of the driver. We are of the opinion that the Tribunal was not justified in fixing the liability of the insurance company. 21. In view of the judgment of the Division Bench and also in view of the definition of tractor it cannot be said that the person travelling on a mud guard could be treated as a person travelling in a transport goods vehicle. No doubt the tractor and trailer put together it becomes motor vehicle. Nevertheless, when the tractor is not adapted or manufactured to provide any place for person other than the driver to sit and travel. If the person is allowed to sit and travel he would be risking his life. Insurer could not have visualised the risk of the other person as the make of tractor is such that it only provide seat for driver only. Hence, injury or death of such person cannot be said to have been covered under the statutory policy or otherwise. 22. As regards to the deceased becomes 3rd party on account of the injuries she sustained after she fell from the mud guard. 23. Learned counsel vehemently contend that deceased was sitting on mud guard and she fell down and after she fell down the tractor wheel went on her and she died, and it is not while traveling. The contention raised by the learned counsel is devoid of merits as the death is not after she alighted from the tractor or she was away from the tractor, the tractor came and hit her. Entire circumstance and the evidence on record disclose that she was sitting on the mud guard of the tractor when the tractor moved, the paddy straw got fire, the driver moved the tractor, after moving the tractor she fell down and after felling down the wheel ran over her. Entire circumstance and the evidence on record disclose that she was sitting on the mud guard of the tractor when the tractor moved, the paddy straw got fire, the driver moved the tractor, after moving the tractor she fell down and after felling down the wheel ran over her. This evidence is very clear on record. Deceased fell down and came under the wheels of tractor only because of the driver moving the tractor and she lost control and fell down and not she fell down on her own and later on account of the negligence of the driver of the tractor she sustained injuries. She sustained injuries because of the traveling on mud guard. 24. As regards to the decision relied by the learned counsel reported in 2007(1) SCC R 736 the case itself is entirely different. That is the case where persons got down from the bus and he was regulating the traffic at that time the bus moved and as a result of it she sustained injury. Such facts are not here. She so fell down from the moving vehicle on account of sitting on mud guard of the tractor and not otherwise. The decision in ACJ 1608 also relates the case where the passenger is alighted and thereafter the accident has occurred. In this case, no evidence to show that she was in process of alighting. 25. As regards to the passenger travelling on the top of the bus and the person travelling on the mud guard cannot be compared as vehicle make itself is different one is passenger vehicle and in this case it is only tractor is engine and nothing else. It is in these circumstances this Court held that the said person was a passenger but it is not the case here. The person sitting on the mudguard can not be considered as a passenger. 26. As far as the hiring of the vehicle is concerned, the undisputed facts are that the injured eye witness in the accident himself has stated in the complaint that tractor and trailer was hired by them to transport paddy straw and now it cannot be said that it was not hired. The owner of the vehicle is not from the place where the accident has occurred. These circumstances prove that the tractor and trailer were taken on hire. 27. The owner of the vehicle is not from the place where the accident has occurred. These circumstances prove that the tractor and trailer were taken on hire. 27. Considering the case from any angle, I find that the Tribunal has rightly held that there is a violation of the policy conditions. In such circumstances the insurer cannot be held liability, particularly when the risk of the person travelling on the mud guard, risk of such person is not covered under the policy or under the provisions of the M.V. Act. 28. In these circumstances the appeal filed by the insurer is allowed. Delay in filing the cross objection condoned. However, the Cross objection is rejected. As far as the claimants are concerned, the compensation is awarded by taking the income at Rs.2,250/- per month, accident is of the year 2001. Considering the circumstances and also considering the liability fixing on the owner, I find reasonable compensation has been awarded by the Tribunal. Accordingly appeal filed by the claimant also stands dismissed. Amount in deposit be refunded to the appellant-insurer.