THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. Nos.1350 of 2005 and 2887 of 2011 COMMON JUDGMENT: Both the appeals arise out of the order dated 12.01.2005 in O.P.No.159 of 2000 on the file of the Motor Accident Claims Tribunal- cum-Principal District Judge, Khammam. A claim was made for compensation of Rs.2,50,000/- by the claimants consequent on the death of the deceased Dharmavarapu Saibaba in a motor accident on 03.08.1999 when he was said to be traveling in SRMT lorry bearing No.AP-5-X-4018 from Warangal to Khammam and due to rash and negligent driving of the driver of the said lorry, which dashed against another lorry bearing No.AP 7 U 4239, which was parked on the left side of the road and consequently the deceased received injuries and died. The petitioners claimed compensation as dependants of the deceased. The 1st respondent was the driver and the 2nd respondent was the owner of the lorry in which the deceased was traveling and the 3rd respondent is the insurance company and all of them are jointly and severally liable to pay the compensation. The 1st respondent remained ex parte and the respondents 2 and 3 filed counter denying the allegations in the claim petition about the rashness and negligence attributed to the driver of the lorry in which the deceased was traveling, the liability and also disputing the quantum of compensation. The 3rd respondent also further pleaded that the deceased was a gratuitous passenger and consequently, the insurance company is not liable to pay compensation. The lower Tribunal, after considering the material on record, has come to the conclusion that the incident was due to the fault of the driver of the lorry in which the deceased was traveling and also determined the compensation at Rs.2,00,000/-. The lower Tribunal also recorded a finding that the deceased was a gratuitous passenger, however, it held that the amount of compensation shall be first paid by the 3rd respondent-insurance company, and shall be recovered from the 2nd respondent, who is the owner of the vehicle. Aggrieved by the said order, the insurance company has filed the appeal in M.A.C.M.A.No.2887 of 2011 and the 2nd respondent has filed the appeal in M.A.C.M.A.No.1350 of 2005 questioning the finding of the lower Tribunal about the rashness and negligence attributed to the driver of the lorry and also the direction that the amount shall be recovered from the 2nd respondent after payment by the insurance company. The points for consideration are: 1. Whether the incident was due to the rash and negligent driving of the lorry in which the deceased was traveling? 2. Whether the insurance company is liable to pay the amount and recover the same from the 2nd respondent? POINTS: So far as the first point is concerned, though the 2nd respondent disputes the nature of the incident, no evidence has been adduced before the lower Tribunal and the lower Tribunal after considering the evidence of P.W.1 and also the charge sheet and other material on record, came to the conclusion that the incident was due to the fault of the driver of the vehicle belonging to the 2nd respondent. Having failed to participate in the trial and having failed to adduce any evidence to that aspect before the lower Tribunal, the 2nd respondent cannot now contend about the question of fact determined by the lower Tribunal that there was no rashness or negligence on the part of the driver of the vehicle. So far as the nature of the vehicle is concerned, evidently, it is a transport goods vehicle and traveling of the passengers in that vehicle is prohibited. In fact, the finding of the lower Tribunal is positive to the effect that the deceased was a gratuitous passenger. It is not even disputed by the 2nd respondent that the deceased was traveling in the vehicle belonging to the 2nd respondent. The lower Tribunal has relied upon a decision reported in National Insurance Co. Ltd. v. Baljit Kaur[1] and came to the conclusion that the insurance company shall pay the amount and recover the same. In fact, the above judgment applies only in cases of third parties and the deceased while traveling in the vehicle, which was involved in the accident and insured with the appellant, cannot claim that he is a third party to be compensated by the insurance company. The law, on this aspect, is well settled and the theory of pay and recover does not arise. In this connection, it is useful to refer to the judgments reported in National Insurance Co. Ltd. v. Bommithi Subbhayamma[2], National Insurance Co. Ltd. v. Prema Devi[3] a n d National Insurance Company Limited v. Vedwati[4]. Therefore, in view of the above decisions, the question of pay and recover does not arise and consequently the insurance company is not liable to pay the compensation and the 2nd respondent, being the owner of the vehicle, cannot avoid the liability to pay the compensation. Accordingly, the appeal in M.A.C.M.A. No.1350 of 2005 is dismissed and the appeal in M.A.C.M.A.No.2887 of 2011 is allowed. If any amount has been deposited by the insurance company and is in deposit, the insurance company is at liberty to withdraw the same. In case, the amount has been withdrawn by the claimants, the insurance company has to recover the same from the 2nd respondent. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J 21-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. Nos.1350 of 2005 and 2887 of 2011 DATE: 21-11-2011 MR [1] (2004) 2 SCC 1 [2] (2005) 12 SCC 243 [3] (2008) 5 SCC 403 [4] (2007) 9 SCC 486 = AIR 2007 SC 1334