V.GOPALA GOWDA, CJ. M.A. NO.789 OF 2000 (Decided on 10.12.2010) ORIENTAL INSURANCE CO.LTD. ……… Appellant. .Vrs. PURNAMI NAIK & ORS. ……. Respondents. MOTOR VEHICLES ACT, 1988 (ACT NO.59 OF 1988) – SEC.122. For Appellant - M/s. G.P.Dutta, K.C.Narendra & A.Jena. For Respondents - Mr. B.B.Routray-R-1, M/s.Sabita Ranjan Pattnaik, Padmaja Patnaik, P.K.Swain, D.Pradhan, R.P.Patnaik & N.K.Senapati(R-10) V.GOPALA GOWDA CJ. This Miscellaneous Appeal is directed against the Award/Judgment dated 12.10.2000 passed by the Member, Second M.A.C.T., Northern Division, Sambalpur, in Misc.(A) Case No.87 of 1996 (S) in allowing the application filed by the L.Rs. of the deceased Saukilal Naik by answering the contentious issue fastening the liability upon the appellant-Oriental Insurance Company and respondent no.10- National Insurance Company Ltd. urging various legal contentions. 2. The legal grounds urged in this Appeal against impugned Award are stated herein, there is no need to advert to the facts of this Judgment for the reason that the learned Member of the Tribunal has extensively referred to the same in the impugned Award. The Appellant who was the opposite party no.4 before the Tribunal has filed this Appeal questioning correctness of the findings recorded on the issue no.1 at paragraph-9 of the Award against the Appellant holding that the contributory negligence on the part of the driver of the vehicle insured with the Appellant which is on fact and in law is not correct and further fastening the liability of 50% compensation upon this Appellant on the basis of contributory negligence at Rs.25,000/- towards the compensation awarded with interest by the Tribunal in favour of the L.Rs. of the deceased placing reliance upon the Ext.6. The Insurance policy of the Jeep is an ‘Act Policy’ and the deceased was traveling as a passenger in the said Jeep, which is not permissible under the terms and conditions of the policy and the deceased person has been termed as a “gratuitous passenger” in respect of whom the Hon’ble Supreme Court has stated that no liability can be fastened upon the Appellant-Insurance Company, for the reason that the deceased has travelled in the Jeep in violation of the terms and conditions of the Insurance policy issued in favour of the insured owner of the vehicle involved in the accident and further the deceased also could not have been considered as a third party by the Tribunal to cover the policy and awarded compensation. Therefore, the finding of the Tribunal fastening the liability of 50% of the awarded compensation upon the Appellant on the basis of contributory negligence is erroneous in the eye of law and therefore the same is liable to be set aside. 3. The Second ground of attack of the impugned Award by the learned counsel for the Appellant is that the learned Tribunal has erred in law in holding that the driver of the offending Jeep was rash and negligent in causing the accident and as such the award of 50% of the compensation payable by this appellant is bad in law and is liable to be set aside. Learned counsel for the Appellant in support of his contention has placed reliance on the decision of this Court in The D.M., Oriental Insurance Co-Ltd. v. Arati Mishra & Anr. , D.M., O.I.C.Ltd. v. Ashok Ku.Satpathy & Anr., D.M., I.I.C. Ltd. v. Sarojini Satpathy & Ors. & D.M., O.I.C. Ltd. v. Pabitra Mishra & Ors. 2010(I) ILR-CUT 248, wherein this Court interpreted the phrase ‘Act Policy’ with reference to Section 147 of the M.V. Act of 1988, after considering the catena of the judgments of the Supreme Court. Therefore, he submits that the said decision is applicable to the facts situation of the case on hand and therefore the learned counsel for the Appellant submitted that the findings recorded on Issue Nos.1 & 2 in the impugned Award may be set aside. 4. Learned counsel appearing for respondent nos. 1 to 9 to justify the award passed in favour of them contending that the Tribunal being the fact finding authority after appreciating the facts and legal evidence on record has rightly recorded the findings on the contentious issues and held that there is a contributory negligence on the part of both the drivers of the Jeep and the Truck and therefore it has further held that the insurers of both the vehicles are liable to pay the compensation amount to the legal representatives of the deceased. 5. With reference to the above rival contentions urged at the Bar, I have examined the findings and reasons assigned in the Award with a view to find out as to whether the findings recorded on the contentious issues framed by the Tribunal are required to be set aside, on the grounds urged on behalf of the Appellant. The issues framed by the Tribunal in the claim case read as follows: “(1) Whether the accident took place due to rash and negligent driving of the alleged vehicle causing death to Soukilal Naik? (2) Whether the applicants are entitled for compensation, if so, to what extent and from whom? (3) To what other relief, the parties are entitled for?” Appellant and respondent no.10 contested the claim case of the claimants before the Tribunal. The Tribunal after considering the pleadings of the parties, evidence of A.Ws.2 and 3 and documents marked as Exts.1 to 6 has recorded its findings and reasons on the contentious issue no.1 referred to above in the impugned award against both appellant and respondent no.10 and in favour of the claimants by recording valid and cogent reasons. The contention urged on behalf of the appellant that since charge sheet was filed against the truck driver who is responsible for the cause of the accident on the fateful day against the parked Jeep in which the deceased was traveling, fastening the liability upon the appellant also in the impugned award to pay the compensation is erroneous and bad in law. 6. I have carefully examined the above legal contention of the appellant,s counsel with reference to the reasons assigned by the learned Member of the Tribunal at paragraphs-9 and 10 of the impugned award. Learned Member of the Tribunal in exercise of its original jurisdiction has properly appreciated the pleadings and evidence on record and recorded the findings of fact keeping in view the undisputed fact that the 2 Jeep was parked at a dark place on the public road without the parking lights on. Therefore, the Tribunal has rightly applied the provisions of Section 122 of the M.V. Act and recorded its finding holding that there is contributory negligence on the part of the driver the Jeep and therefore fastened the liability for payment of compensation awarded both on the appellant and respondent no.10 equally. 7. So far as ‘Act Policy’ is concerned, learned counsel for the appellant has submitted that the deceased was traveling as a passenger in the Jeep unauthorizedly. In support of his contention, he pointed out that the findings recorded at paragraph-13 of the impugned award, wherein the learned Member of the Tribunal has held that the deceased was a gratuitous passenger, which is contrary to the facts and evidence adduced by the claimants. The evidence of the claimants has been referred to by the learned Member of the Tribunal while answering to contentious issue no.1 at paragraph 9 and recorded the finding holding that the deceased person along with others was returning from a marriage party and it has been elicited from A.W.3 in his cross- examination, wherein he has stated that they took the Jeep free of cost from its owner and there were eight persons traveling back after attending the marriage. The very statement of the witness of the claimants that the Jeep was given ‘free of cost’ is relevant in support of the findings recorded by the Member of the Tribunal while answering contentious issue no.1, and rightly held the appellant is also liable to pay the compensation to the claimants at 50% awarded amount with interest. The Jeep was given free of cost to the deceased and others to attend the marriage and no rent or fare was collected from the deceased. There is no rebuttal evidence adduced by the appellant in this regard to show that the deceased was traveling as a passenger unauthorizedly in the Jeep, though such plea was taken in the counter statement filed by the appellant. Therefore, the learned Member of the Tribunal has answered the issue no.1 at paragraph-9 of the Award in favour of the claimants. The finding on the issue no.1 is correct as the same is based on facts and legal evidence on record and the compensation awarded at Rs.50,000/- with interest at 10% in favour of the claimants is also on the lower side. The Member of the Tribunal has rightly held that there is contributory negligence both on the appellant and opposite party no.10. Therefore, they have to contribute half each by paying Rs.25,000/- towards such compensation with 10% interest per annum till the payment is made which is legal and valid and the same cannot be termed as erroneous in law. The decision of this Court referred to supra upon which reliance placed by the appellant’s counsel is totally inapplicable to the facts and circumstances of the case on hand and therefore the same is misplaced. 8. For the foregoing reasons, the appeal is dismissed. Since the claim case is pending for the last 14 years, the Insurance Company shall deposit or pay the compensation amount to the claimant-respondents 1 to 9 with interest within four weeks from the date of receipt of this judgment. Appeal dismissed. 3