D.V. Shylendra Kumar, J.

This appeal under Section 173 of the Motor Vehicle Act, 1988 (for short ‘the Act’) by the indemnifier insurer-New India Assurance Company Limited who is not very enthusiastic to reimburse the compensation payable by the owner of a lorry bearing No. MEW 4465 covered by the public carrier permit, contending that the Motor Accident Claims Tribunal, Bangalore, has committed an error in concluding that the appellant-insurer is liable to reimburse the owner and in fastening a joint liability to compensate the dependents of one Jayappa who without any dispute succumbed to some injuries he had sustained while attempting to board this goods carrier from behind.

2. The dependents-wife and two sons had filed a claim petition before the Tribunal under section 166 of the Act praying for awarding compensation being the loss of dependency due to the death of the breadwinner.

3. The second respondent-insurance company alone contested the claim petition, while the first respondent-owner of the vehicle did not respond to the issue of notice by the Tribunal and was placed ex parte.

4. The relevant paragraphs of the statement of objections filed by the insurance before the Tribunal reads as under:

“Regarding column No.22 of the claim petition this respondent denies that on 24.3.2001 at about 2.30 pm the deceased Jayappa tried to board the lorry bearing regn.No.MEW-4465 near Chikkajala Kerekodu, at that time the diver of the lorry suddenly moved the lorry in a rash and negligent manner, reckless, endangering to human life and the deceased fell down and sustained grievous injuries all over the body and he was taken to Ashwini Hospital, Yelahanka for immediate treatment and he died at 6.30 pm on the same day. The petitioners are put to strict proof of the same. The petitioner was not an employee under lorry owner and he was not entitled to board the lorry. The policy does not over risk to third parties. The petitioner is not entitled to any compensation from this respondent.

This respondent submits that the alleged incident, if any, was attributed to the negligence of the deceased himself, which attempted to board a running lorry. The deceased was not entitled to board and travel in a goods vehicle. Hence the petitioners are not entitled to any compensation from this respondent and the petition is liable to be dismissed.”

5. The question with which we are concerned in the present appeal is one relating to the stand of the insurance company to the effect that the deceased person was not in the position of a third party vis-à-vis the vehicle covered by the policy issued by the insurance company and therefore there was no liability on the part of the insurance company as the policy was issued in terms of section 147 of the Act.

6. The Tribunal, however, rejected this stand of the insurance company placing reliance on a Judgment of this court in the case of ‘National Insurance Company Limited vs. Ningamma’ reported in ILR 1996 KAR 2213.

7. It is under such circumstances, the present appeal.

8. The appeal had been admitted and records had been called for. We have heard Sri Suryanarayana Rao, learned counsel for the appellant and Sri K.T. Gurudevaprasad, learned counsel for the respondents-claimants.

9. Submission of Sri Suryanarayana Rao, learned counsel for the appellant is two fold. It is firstly contended that the learned Judge has erred nay has committed an illegality in placing reliance on the Judgment rendered in the context of the provisions of section 147(1)(b)(i) of the Motor Vehicle Act, 1939 which was no more in vogue as on the date of the accident, which was on 24.3.2001; that the statutory provision which governed the claim application undisputedly being under section 166 of the Act and the procedure envisaged therein being not as under the Motor Vehicle Act, 1939, the learned Judge of the Tribunal has misdirected himself in placing reliance on a Judgment not relevant or applicable to the present se