IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.63 of 2005 UNITED INDIA INSURANCE COMPANY Versus SATIYA DEVI @ SUNDRI DEVI & ORS ----------- For the Appellant:Sri Durgesh Kumar Singh,Advocate For the Respsaondents: None 6 16.7.2008 Heard Sri Durgesh Kumar Singh, learned counsel for the appellant. No body appears for the respondents Satiya Devi @ Sundri Devi and others, although, the name of the learned counsel appears in the daily cause list. This appeal is directed for setting aside the Judgment and Award dated 3.9.2004 and Award signed on 20.9.2004 respectively passed by Sri Prakash Chandra Jaiswal, Additional District Judge V, Gaya-cum Additional Motor Accident Claims Tribunal, in Motor Accident Claim Case No.23/2003/68/2001(Satiya Devi and others Vs.United India Insurance Company and another) by which compensation against the appellant has been allowed. It has also been prayed that owner of the truck may be ordered to pay the amount already paid by the Insurance Company. It has been submitted by the learned counsel for the appellant that Rs.50,000/- by way of ad-interim compensation has been paid by the Insurance Company which may be realised from the owner of the truck and, accordingly, be returned to the Insurance Company. Brief facts of the case are as follows. A claim petition under 2 Section 166 of the Motor Vehicle Act was filed by the respondents and others against the appellant seeking compensation to the tune of Rs.2,50,000/- by the wife and sons of the deceased. The deceased Udit Yadav was travelling in a truck bearing Registration No.UP-67-7581A and at about 9.45 P.M. while the said truck arrived near Shaguni More(Lala Bagh) under Masaurhi police Station in the district of Patna, it turned turtle due to rash and negligent driving of the said vehicle by the driver resulting in death of Udit Yadav and four other persons for which Masaurhi P.S.Case No.79/2001 was registered under Sections 279,304A of Indian Penal Code against the driver of the vehicle on the fard byan of the Chowkidar.An autopsy on the dead body of the deceased Udit Yaadav was conducted. The Police investigated the case and submitted charge-sheet under Sections 279,304A of the Indian Penal Code against the driver of the vehicle. Further case of the claimant before the Tribunal was that the deceased Udit Yadav was aged about 50 years and he was engaged in the business of sale and purchase of cattle who used to earn Rs.4000/- per month from the said transaction and out of it he used to give Rs.3000/- per month to his wife for family expenses. Further case of the claimant is that the offending vehicle was insured with the Insurance Company Vide Policy No.1378, cover note no.42576. The aforesaid Policy was valid and effective from 30.10.2000 to 29.10.2001 i.e.at the relevant time of the accident the Policy was valid. The date of accident i.e. death is 27.6.2001. O.P.No.1 United India Insurance Company of the Claim case had filed its written statement contesting the claim on the ground of its 3 maintainability as also on other facts. It has been submitted that claim petition is barred by principles of waiver, estoppel and acquiescence besides violation of terms and conditions of the Insturance policy. It was also averred that the owner of the vehicle is fully responsible for the liability because its driver was driving the vehicle in very high speed and at the time of the accident the deceased was sitting on the back of the truck The vehicle was insured only for the driver and the khalasi and not for any other passengers. The deceased died due to rash and negligent driving by the driver of the vehicle. Learned counsel for the appellant has also referred Ext.2 which is the FIR, in order to show that the vehicle at the time of plying was full of sand over which the deceased Udit Yadav was sitting on the DALA(back and separated portion of truck used for the purpose of carrying goods)and on account of turning of the truck, he collapsed under weight of the sand for which the Insurance company is not at all liable to pay any compensation. In support of its contention, four decisions have been cited by the learned counsel for the appellant, namely, 2004(2) PLJR.59 (SC), 2008(1)SCC,423,2008(5)SCC,403 and 2007(2)PLJR,216 SC. The sum and substance of the citations referred to above and relied upon would go to show that the Insurance Company is not at all responsible to pay any compensation, when the commercial vehicle was being plied by the driver, in the manner in which FIR seems to have been drawn, and the deceased met his end, while he was sitting on the back portion of the truck. The Insurance Company had not insured any person except the driver and khalasi of the truck and even then in compliance of the Tribunal’s order, appellant has made payment to the claimants which may be returned and, if 4 any liability is there for compensation to the deceased, it is the owner of the truck. No body appears for the respondents. Finding force and substance in the contention of the learned counsel for the appellant and the citations relied upon, the order impugned is not sustainable in the eye of law and the same is hereby set aside. The claimants may be compensated by way of compensation whether interim or final from the owner and the amount paid by the Insurance Company shall be recovered from the owner of the truck. The statutory amount deposited in the High Court may be returned to the appellant. In the result, this appeal is allowed with the aforementioned directions and observations. SKBOSE (Subash Chandra Jha)