(MAHARAJAN, J).

1. This is an appeal against the order of the Motor Accidents claims tribunal, Salem, dismissing a claim-made under S. 110-A of the Motor Vehicles Act for compensation of Rs. 50,000 for the death of one K.S Loganathan in a tractor accident. The accident took place on 21st October 1969,. while Loganathan was ploughing his mothers land with the tractor, owned by his father Sundaram and insured by him with the Life Insurance Corporation of India. The claimants, who are the widow, daughter and mother of the deceased, alleged in the petition that; without any rashness or negligence on the part of Loganathan, the vehicle turned turtle suddenly at 1 pm on the date in question, with the result Loganathan fell down and was crushed to death by the tractor. It was alleged is the petition that the accident was due to mechanical defect in the vehicle. Sundaram, the father of the deceased, remained ex parte.

2. The Insurance Company filed a counter raising several objections, one of which was that the accident had beep brought about by the rashness and negligence of Loganathan, who was driving the tractor. The other contention was that the accident bad taken place in a private land and the petition was not therefore maintainable under S. 95(1) read with S. 2(24) of the Motor Vehicles Act. Objections were raised to the maintainability of the petition before the Claims Tribunal on the ground that the petition would lie under the Workmens Compensation Act before the Commissioner and not before the Claims Tribunal.

3. The Tribunal negatived the case of the claimants that the deceased was an employee of his father, Sundaram and consequently, dismissed the claim made by the appellants.

4. Learned counsel for the appellants contends that the finding of the Tribunal that the deceased was not an employee of his father is wrong and that the evidence on record ought to compel the court to conclude that the deceased was really an employee of his father and that compensation ought to have been granted by the Tribunal under the Workmens Compensation Act.

5. We have been taken through the entire evidence on record and we see little reason to differ from the finding of the tribunal.

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[The discussion on facts is omittedEd.]

6. It would then follow that the dependants of the deceased Loganathan would not be entitled to compensation under the Workmens Compensation Act.

7. Learned Counsel next endeavoured to to show that the terms of the insurance policy do cover a risk of the kind that has occurred. Reference is made by him to Cl. 3 of S. 2 of the insurance policy, Ex. B-1, which says as follows:

In terms of and subject to the limitations of the indenmnity which is granted by this section to the Insured the Corporation will indemnify any driver who is driving the motor Vehicle on the Insureds order or with his permission provided that such driver.

(a) is not entitled to indemnity under any other policy

(b) shall as though he were the Insured observe, fulfil and be subject to the terms, exceptions aid conditions of this Policy in so far as they can apply.

What this clause says is that the insurer will indemnify any driver and that stipulation to indemnity is subject to the terms and limitations contained in Section II of the policy. If the driver had committed any tortious act against a third party, he would be, under the law of torts, equally with the master, liable for damages caused to the third party. In such a case, the insurer might be held to have contracted to indemnify the driver. But, in this case, the driver of the tractor did not commit any tortious act against any third party. No question, therefore, of indemnifying either the driver or his master, could arise. Further, the conditions laid down in Section II are stated in clause 1, the relevant portion of which is as follows.

Subject to the limits of liability, the Corporation will indemnify the Insured against all sums including claimants costs and expenses which the Insured shall become legally liable to pay in respect of (i) death of or bodily injury to any person. ..

Before making the insurer liable, it is necessary for the claimants to prove that the insured has become legally liable to pay any compensation in respect of the deceased. The insured would be legally liable if the deceased bad been his employee. He may also be legally liable if the deceased bad committed a tortious act against third parties. But, in this case, we have found that the deceased was not the employee of the insured. The case of the claimants themselves is that the deceased was not guilty of rashness and negligence and did not commit any tortious act. It would, therefore, follow that no foundation has been laid for the vicarious liability of the insured.

8. It is unnecessary for us in this appeal to consider the merits of the other objections raised by the Insurance Company before the Tribunal.

9. Upon the finding recorded above, we have no option but to dismiss this appeal, but, in the circumstances, without costs.