THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 3117 of 2011 JUDGMENT: The appeal is filed by the insurance company against the order dated 07.02.2005 in M.A.T.O.P.No.591 of 1999 on the file of the Motor Accident Claims Tribunal-cum-IV Additional District Judge (Fast Track Court), Khammam questioning the liability to pay the amount first and recover the same. A claim was made by the petitioners for compensation of Rs.1,50,000/- consequent on the death of the deceased Banoth Bikku in a motor accident on 17.02.1999 when he was said to be going in the lorry bearing No.AP-16-T-5559 with fertilizer bags and due to rash and negligent driving of the lorry by its driver, the lorry turned turtle and the deceased died. The insurance company has contended that the deceased was a gratuitous passenger and there is no liability to pay the compensation. The lower Tribunal, after considering the material evidence on record, has granted a compensation of Rs.1,34,500/- and directed the appellant to deposit the same and recover from the owner-respondent No.2. Aggrieved by the same, the present appeal is filed. The point for consideration is whether the appellant has to pay the amount and recover the same? POINT: There is no dispute about the fact that the deceased was said to be traveling in the goods vehicle and said to be carrying two bags of fertilizer. This is not a case of owner of the goods traveling in the lorry. Evidently, the lorry was not booked by the deceased and, therefore, he cannot claim as a person traveling in the lorry with the goods. Therefore, the insurance company is not liable. The question of payment and recovery does not arise in view of the judgment of the Hon’ble Supreme Court reported in National Insurance Co. Ltd. v. Cholleti Bharatamma[1]. Therefore, in the above circumstances, the insurance company is not liable to deposit the compensation amount. The claimants have to proceed against the owner. In case, any amount was deposited by the insurance company and withdrawn by the claimants, the appellant-insurance company is at liberty to proceed against the owner of the vehicle. In case, the amount was not withdrawn, the insurance company is at liberty to withdraw the same. Accordingly, the appeal is allowed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 24-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 3117 of 2011 DATE: 24-11-2011 MR [1] (2008)1 SCC 423 = 2008 ACJ 268