1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR FIRST APPEAL NO. 443 OF 2009 Oriental Insurance Co. Ltd. Vs. Farid Mohamad Sultan Mohamad & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri V. L. Somalwar Adv. for appellant. Shri S. J. Khandalkar Adv. for respondents. CORAM: C. L. PANGARKAR J. Dated: 24 th JULY, 2009. This appeal is preferred against judgment in Claim Petition No. 54 of 1994 filed in the Court of Motor Accident Claims Tribunal at Chandrapur. Claimants in the said petition are the heirs of Mohamad Rafik who was working as Cleaner on the truck owned by non applicant No.4 Rajeshkumar. On 08.10.1993 Liyakat Hussain was driving Mini Trubk No. MWY-7464 which met with an accident 2 inasmuch as it is alleged that said truck was hit by a tanker bearing No. MWQ-7945. Due to the dash given by the said tanker truck sustained damage and both driver and the conductor were killed. Claimants in the said petition are, as already stated the heirs of the conductor Mohd Rafik. They filed a claim petition before the Motor Accident Claims Tribunal against the owner of the Mini Truck in which deceased was working as conductor as well as tanker. The learned Judge of the Tribunal found that it was a case of contributory negligence and the tanker driver was negligent to the extent of 60% while Liyakat Hussain the driver of the Mini Truck No. MWY-7464 was negligent to the extent of 40%. The learned Judge therefore fastened the liability on the owner and insurance company of the truck as well as the tanker. The present appellant who is the non applicant No.5 in the said claim petition has preferred this appeal. The main ground upon which this appeal has been preferred is that the learned Judge of the Motor Accident Claims Tribunal had exonerated insurance company that is the present appellant from payment of compensation in a claim filed by the heirs of the driver of truck No. MWY-7464. Shri Somalwar learned 3 counsel submits that strangely the learned Judge has held the insurance company i. e. the present appellant liable in one case and strangely has exonerated the insurance company in another case. He submits that in fact the insurance company should have been exonerated in both the cases. Submission is not correct. In the present case insurance company has been held liable to pay compensation to the heirs of the conductor because of the fact that conductor happens to be a person who is covered by the policy of insurance of the said truck. A driver could not have claimed compensation from the insurance company of the truck No. MWY-7464 because the driver has died due to his own negligence. In the circumstances I do not find any substance in the first appeal. The same is dismissed. JUDGE svk 4 5 6