THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No. 4318 of 2003 J U D G M E N T: The appellant – Insurance Company challenges the award dated 06.05.2003 in M.O.P.No. 156 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Visakhapatnam. The brief facts which are necessary for disposal of this Appeal are: The respondents-claimants filed the above said O.P. claiming a compensation of Rs.3,00,000/- for the loss sustained by them due to the death of Bandela Satti Babu (henceforth referred to as ‘the deceased’), in a motor vehicle accident on 25.05.1998 at about 05.00 a.m., on Duddukuru - Devarapalli road, West Godavari District. The 1st respondent is the wife and Respondents 2 to 5 are the minor children and the 6th respondent is the widowed mother of the deceased. According to them, the deceased was aged about 30 years and was earning Rs.2,000/- per month by attending to agricultural cooli works. Respondents 7 and 8 herein, driver and owner of the lorry, remained ex parte. The appellant filed its counter-affidavit, wherein the death of the deceased was not disputed, but however, they contended that it occurred due to the negligence of the deceased, inasmuch as he sat on the iron load and fell down. They relied on Section 123(2) of the Motor Vehicles Act and Rule 252(2) of the A.P. Motor Vehicles Rules to say that no person shall be carried in a goods vehicle, upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle. Therefore, they denied their liability to pay compensation. The Tribunal, after the pleadings are complete, framed the following issues, for trial: 1) Whether the accident occurred due to rash and negligent driving of the vehicle bearing No. AIC 2655 by its driver? 2) Whether the petitioners are entitled for compensation, if so, to what amount and from whom? 3) To what relief? The claimants in support of their claim examined the wife of the deceased as P.W.1 and the eye witness, who was said to be travelling in the offending vehicle as P.W.2 and got marked Exs.A1 to A3. The Assistant Administrative Officer of the appellant was examined as R.W.1 and Exs.B1 and B2 were marked. The Tribunal, after considering the material and evidence available on record, held that the accident occurred due to the rash and negligent driving of the driver of the lorry. With regard to the compensation, the Tribunal took the age of the deceased as 30 and accordingly applied the multiplier ‘18’ and held that the claimants are entitled to compensation at Rs.2,17,000/-. The Tribunal holding that the Insurance company is not liable to pay compensation to the passengers traveling in the goods vehicle as it is clear from Ex.B1 policy that except the driver, cleaner and the workers, others shall not travel thereon, but however, in view of the judgment rendered by the Supreme Court in New India Assurance Company, Shimla v. Kamala[1], wherein it has been held that the Insurer may statutorily liable to pay compensation to third parties at the first instance and then recover from the insured vehicle owner the amount paid to the third parties, observed that the appellant may pay the amount to the claimants and recover the same from the 8th respondent, the owner of the lorry. Learned counsel for the appellant, placing reliance upon the judgment rendered by the Supreme Court in National Insurance Company Limited v. Bommithi Subbhayamma[2], contends that the claimants are entitled to recover the amount of compensation granted in their favour from the owner of the vehicle, but not from the Insurance company, inasmuch as the deceased was travelling in the lorry as a gratuitous passenger. Therefore, he finds fault with that portion of the Award which directed the Insurance company to pay the compensation at the first instance. The learned counsel for the respondents claimants has placed reliance upon a judgment reported in National Insurance Company Limited v. Baljit Kaur[3] and contended that the Insurance company at first instance, has to satisfy the Award and recover the amount from the owner of the vehicle later on. The only question before this Court to be adjudicated upon is whether the Insurance company is liable to pay the compensation at the first instance and then recover the same from the owner of the vehicle, inasmuch as the deceased was travelling as a gratuitous passenger as at that time. In the case relied upon by the learned counsel for the appellant, i . e . National Insurance Company Limited v. Bommithi Subbhayamma (cited supra) also, the deceased was a gratuitous passenger and the Supreme Court therein held that the claimants will be entitled to recover the amount of compensation granted in their favour by the Motor Accidents Claims Tribunal from the owner of the vehicle, but not from the Insurance Company. Therefore, without going deep into the matter, following the aforesaid judgment, the Civil Miscellaneous Appeal is allowed, but however, without costs. ___________________________ GHULAM MOHAMMED, J. 5th August 2010 ksld [1] 2001 AIR SCW 1340 [2] (2005) 12 SCC 243 [3] AIR 2004 SC 1340