JUDGMENT

Sunil K. Kotwal, J. - This appeal is directed by New India Assurance Company against the judgment and award passed by Motor Accident Claims Tribunal (hereinafter referred to as the "Tribunal"), Osmanabad in Motor Accident Claim Petition No.165/2009 where the compensation of Rs. 10,57,000/with interest thereon at the rate of 6% per annum is awarded by the Tribunal.

2. The appellant is original respondent No.3. Respondent Nos.1 to 6 are the original claimants. Respondent No.7 is the driver of offending truck bearing registration No. MH25B7544 (original respondent No.1) and respondent No.8 is the owner of offending vehicle (original respondent No.2).

3. Hereinafter the parties are referred to in accordance with their status in the original proceeding.

4. The facts, in nutshell, are that, the deceased Rajkumar @ Rajabhau Baban Tour was the son of original claimant Nos.1 and 2 and husband of claimant No.3 as well as father of claimant Nos.4 to 6. He was the only bread earning member of the family of claimants. The deceased was serving with Adi Constructions up to 10.05.2007 and thereafter he was serving with respondent No.2 as driver on offending truck at the monthly salary of Rs. 9,000/. On 07.06.2008, after loading Poklen Machine in the offending truck, respondent No.1 was driving it by the road in rash and negligent manner without taking note of the obstacles on the road. That time the deceased was travelling by the same truck as second driver. On way Poklen Machine came in contact with the overhead hanging live electricity wire on the road. When the deceased tried to alight from the cabin of the truck, that time he died on the spot due to electrocution on account of touch of the live electricity wires to the Poklen Machine loaded in the truck. Therefore, the claimants filed claim petition under section 166 of the Motor Vehicles Act, 1988 (For short "M.V. Act") for compensation against respondent Nos.1 to 3. At the relevant time of the accident, the truck was insured with respondent No.3 Insurance Company.

5. By filing Written Statement (Exh.55) respondent Nos.1 and 2 denied the claim, but admitted that on the date of accident the deceased was serving on the offending truck as second driver of respondent No.2. However, it is not disputed that at the time of accident respondent No.1 was driving the offending truck. Even occurrence of the accident due to touch of Poklen Machine with live electricity wires hanging on the road, is not disputed by these respondents. Only the contention of respondent Nos.1 and 2 is that the deceased committed attempt to jump from the cabin of the truck and came in contact with live electricity wires and died due to his own negligence. Contention of respondent Nos.1 and 2 is that the claim is bad for nonjoinder of the owner of Poklen Machine, Maharashtra State Electricity Distribution Company Limited (M.S.E.D.C.L.) as party to the petition. In the alternate, the contention of respondent Nos.1 and 2 is that, on the date of accident the truck was insured with respondent No.3 Insurance Company, and therefore, respondent No.3 is liable to pay compensation to the claimants, if awarded by the Tribunal.

6. Respondent No.3 Insurance Company opposed this petition by filing Written Statement (Exh.33) mainly on the ground that the deceased was travelling by the offending truck as an unauthorised passengers, and therefore, his risk is not covered under the policy of insurance. The next contention of the Insurance Company is that in respect of the same accident the claimants have filed Special Civil Suit No.43/2010 in the Court of Civil Judge, Senior Division, Osmanabad against M.S.E.D.C.L. and the said suit was decreed with costs on 04.03.2013 and compensation of rs. 8,64,000/with interest thereon was awarded. Therefore, now the claimants cannot claim compensation from the driver, owner and insurer of the offending truck under the provisions of M.V. Act. According to respondent No.3, the driver of offendin