The main legal point established in the judgment is the liability of the insurance company under the Motor Vehicles Act, 1988, in cases of negligence and entitlement to compensation.

JUDGMENT :

Vibha Kankanwadi, J.

Present appeal has been filed by the original respondent No.3- insurance company challenging the Judgment and Award passed by learned Ex-Officio Member, Motor Accident Claims Tribunal (District Judge-6), Aurangabad in M.A.C.P. No.698/2006 dated 09.08.2010, whereby the claim petition filed by present respondent Nos.1 and 2 under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") came to be partly decreed against it.

2. The original claimants have come with a case that they are the parents of deceased Shaikh Nisar. Shaikh Nisar was travelling in Tempo Matador bearing registration No.MH 20/F-5395 on 15.02.1997 at about 4.30 p.m. from Gangapur to village Dhoregaon. A truck bearing No.TVD ORA 5447 came from opposite direction, when the tempo was near Sayyadpur village. The said truck was in high speed. The driver was driving it rashly and negligently. The said truck gave dash to matador, as a result of which Shaikh Nisar received injuries and died on the spot. Respondent No.1 is the owner and respondent No.2 is the driver of the truck. The said truck was insured with respondent No.3, on the date of accident. Crime was registered against the truck driver. It was the further contention of the claimants, that Shaikh Nisar used to run a Pan Stall and was also doing agriculture. He used to earn Rs.5,000/- per month. By way of amendment to the petition the claimants had added tempo driver, owner and insurance company as respondent Nos.4 to 6. It was also contended that the respondent No.2- driver of the truck was also responsible for the accident. However, claim was made as against respondent Nos.1 to 3 only.

3. The matter proceeded ex parte against respondent Nos.1 and 2. Respondent No.3-insurance company filed written statement and denied all the allegations including the allegations about rashness and negligence about driver of the truck. It is stated that Shaikh Nisar was travelling as a passenger in a goods vehicle and therefore, the respondent No.3 is not liable to pay the compensation to the claimants.

4. Respondent Nos.4 and 5, owner and driver of the tempo filed common written statement at Exh.42 and respondent No.6-the insurance company of the tempo filed separate written statement. In these written statements, they all have denied allegations against respondent No.5. It has been contended that the accident had taken place only because of the negligence on the part of respondent No.2, the driver of the truck. The said insurance company has also taken a defence that deceased was travelling as a passenger from the tempo Matador, therefore, his risk was not covered under the policy.

5. Taking into consideration the rival contentions, issues have been framed. It appears that only claimants have led oral as well as documentary evidence. The other respondents did not lead any evidence nor produced any document on record.

6. Taking into consideration the evidence on record, the learned Trial Court held that the claimants have proved, that due to the sole negligence on the part of the respondent No.2 the said accident had taken place. The insurance company-respondent No.3 failed to prove breach of terms of policy and therefore, the claimants, who are the parents of deceased, are entitled to get compensation. It was also held that the respondent No.5 has not contributed the accident, in any way, and therefore, respondent Nos.4 and 6 are not liable to pay compensation. Respondent Nos.1 to 3 were directed to pay compensation of Rs.3,21,000/- together with interest. This Judgment and Award is under challenge in this appeal.

7. Heard learned Advocate Mr. D.P. Deshpande for appellant, learned Advocate Ms. A.N. Ansari for respondent Nos.1 and 2 and learned Advocate Mr. V.R. Mundada for respondent No.7.

8. It has been vehemently submitted on behalf of the appellant that the learned Tribunal failed to consider that the First Information Report was filed against the drivers of both the vehic