Both the cases arise out of the same accident that took place on 29.02.2004 and the challenge in both the cases is to the award dated 09.01.2009 passed by the 2nd Additional Motor Accident Claims Tribunal (FTC), Surajpur, District Surguja (CG) in Motor Accident Claim Case Nos. 87/2006 and 17/2006. Vide the impugned award the Tribunal in Claim Case No.87/06 in respect of death of Bihari has awarded a compensation of Rs.2,94,975/- and in Claim Case No.17/06 in respect of injury sustained by Ramprasad has awarded a compensation of Rs.5,000/-. In both the cases, interest @ 7% per annum from the date of application has been awarded.

2. While passing the said award the Tribunal has exonerated the Insurance Company of its liability and has fastened the liability of payment of compensation upon the present appellant i.e. the owner of the offending vehicle.

3. For better appreciation of the case, the brief facts in the instant case are that on 29.02.2004 when the deceased Bihari was travelling along with Ram Prasad on a truck bearing no. CG16 SC 0346 owned by the present appellant Durga Prasad and driven by respondent no.8 Bahadur Singh Gond dashed with a vehicle coming from the opposite direction i.e. Jeep bearing registration no. CG 15ZB 0295 belonging to respondent no.7 Suresh Chandra Singh and driven by respondent no.9 Brijlal. As a result of the accident the deceased Bihari who was sitting in the truck fell down and sustained grievous injuries to which he later succumbed. Similarly the co-passenger Ram Prasad also received injuries from the said accident. During pendency of the matter before the Tribunal, injured Ram Prasad also died on account of some other reason. The legal representatives of deceased Bihari filed a claim case registered as Motor Accident Claim Case No.86/06 and the LRs of Ramprasad filed a claim case registered as Motor Accident Claim Case No.17/06 before the Second Additional Motor Accident Claims Tribunal (FTC), Surajpur.

4. The Tribunal taking into consideration the fact that it was a truck which was meant for carrying goods and the deceased was travelling on the said vehicle as a gratuitous passengers for whom no premium was paid by the appellant-owner, exonerated the Insurance Company of its liability and the entire liability was fastened upon the driver and the owner of the offending truck.

5. Counsel for the appellant challenging the award submits that the Tribunal has not properly appreciated the statement of an eyewitness-AW-2, who has given specific details in respect of how the accident occurred and that the offending vehicle was not involved in the accident and that it was an accident which occurred from the Jeep coming from the opposite direction. He submits that the Tribunal failed to take note of the fact that as per the evidence of AW-2-Ashok Sori, the offending vehicle i.e. the Truck belonging to the present appellant was in stationary position when the accident arose. The deposition of AW-2 reflects that there was a break down of the Truck belonging to the appellant and in order to catch a different vehicle for going to the destination, the deceased and the injured Ramprasad were trying to cross the road when the accident arose. Thus, the offending vehicle cannot be saddled with the responsibility of covering the risk of the two persons. It was contended by the counsel for the appellant that the Tribunal further failed to take notice of the fact that there was an element of contributory negligence on the part of the deceased as well as the injured in as much as if the deceased and the injured would had been more cautious while crossing the road, the accident could have been avoided.

6. Counsel for the appellant relied upon the decision of the Rajasthan High Court reported in 2003 (2) TAC 347 (RAJ) “United India Insurance Company Limited vs. Master Sodari Devi & Others”. The counsel for the appellant further referring to the aforesaid judgment submitted that the deceased person in the instant