Shri A.B. Gatne, Advocate for the appellant and Shri P.S. Agrawal, Advocate for respondent Nos. 1 to 6 are present. With the consent of the parties this appeal is heard finally at the stage of admission.

2. This is an appeal preferred by the insurance company, which is original opponent No.2 being aggrieved by the judgment and award passed by the Member, Motor Accident Claims Tribunal, Hingoli in M.A.C.P. No. 176 of 2001 decided on 10.10.2005. Respondent Nos. 1 to 6 are the original claimants. They are legal heirs of deceased Gajanan s/o. Sayaji Shinde, who was son of respondent No. 1 and 2, husband of respondent No.3 and father of respondent Nos. 4 to 6. Respondent No.7 is the insured and owner of truck No. MP-09-KA-9549.

3. It is original case of the claimants that on 22.01.2001 the deceased Gajanan was travelling in Truck No. MP-09-KA-6549 and went to Chor Pangra. He was on duty as a cleaner. One Shaikh Abdul was the driver of the said truck. When the truck was returning back, it was being driven rashly & negligently and in excessive speed. When the truck came near Ganeshpur, the driver lost his control and suddenly he applied breaks. Due to severe jerk and fast speed of the truck, the deceased was thrown on road and had sustained severe injuries and fractures on various parts of the body and become unconscious. He was taken to the hospital at Risod, but died on the next day. In the claim petition it is also mentioned that deceased Gajanan had gone to Chor Pangra for taking Jawar and Wheat. Thus the original case made out in the claim petition is that Gajanan was on duty as a cleaner and as such an employee of owner of the truck respondent No.7-Pankajkumar Gandhi.

4. It is argued on behalf of the present appellant that in-fact, Gajanan was one of the members of a marriage party which was illegally being transported in the truck. Gajanan was sitting on "Falka" (rear side of wooden gate of the truck). As he was hit against a branch of a tree, he fell down from the truck and sustained injuries. In the truck, passengers were being carried illegally. There was breach of terms and conditions policy and as such the appellant is not liable. The appellant does not dispute the award of compensation of Rs.2 lakhs to respondent Nos. 1 to 6. It is stated that the owner of the truck is liable and the appellant insurance company is not liable to reimburse the owner of said compensation due to breach of terms and conditions of the policy.

5. It is also argued before this Court that the Trial Court has not considered this aspect while deciding the matter inspite of the fact that there was evidence led by the appellant. The written statement filed by the appellant is at Exh.12 and it is specifically stated that deceased Gajanan was not on duty as a cleaner. He was not carrying any goods like Wheat and Jawar. When the written statement was filed, necessary particulars of the policy were not given. Therefore, it is also stated that the policy was not obtained, but now it is admitted position that the policy was obtained. It is further stated in para 19 that there was breach of policy terms as passengers were carried in the goods truck.

6. Girjabai (respondent No.3) is examined at Exh.27. She stated that the incident took place at about 7 1/2 years ago. On that day along with her husband, she and respondent No.1 had gone to Chor Pangra to see her ailing maternal uncle. They purchased one quintal Wheat and one quintal Jawar from her uncle and kept it in the truck which was to come to Chor Pangra. Near Ganeshpur, when they were travelling with the goods, the truck was in high speed and due to negligence of the driver, the deceased fell down from the truck and sustained injury on the head.

7. So, the case that the deceased was employee of