Liability of the Insurance Company to pay compensation in the first instance, with the right to recover the same from the owner and the driver of the offending vehicle.

( 1 ) THIS appeal is directed against the judgment/award of the Motor Accident Claims Tribunal in case No. 113/84, whereby the Tribunal by its award dated 3. 1. 1995 has held that no accident took place with the offending vehicle and that the Insurance Company was not liable to discharge the claim even if the claim had been proved.

( 2 ) BRIEF facts of the case as noted by the Motor accident Claims Tribunal are as follows:-

CLAIMANTS are legal heirs of Jag Mohan deceased. He was aged 29 years old and was employed in M. C. D. And earning rs. 896/- p. m. On 19. 2. 84 he bought some wheat bags and was traveling in truck NO. PVO-4695 with wheat bas for carrying the same to general store Punjabi Bagh. It was being run by respondent No. 1 under employment of respondent NO. 2 and was returned with respondent No. 3. The truck was being run rashly and negligently. Driver, when reached crossing of general store on Ring Road, there was red light. He did not care for the same and tried to cross the same but on finding a constable there, suddenly applied the brakes, due to it window of the truck opened. Jagmohan fell outside the truck and was crushed under the same truck. Claimants claim Rs. 5 lakhs as compensation under M. V. Act. "

( 3 ) IT is contented by counsel for the appellant that the reasoning of the learned Tribunal on the factum of accident is incorrect inasmuch as it has disbelieved, pw-5, a Constable who was an eye-witness and at whose instance F. I. R. , Exhibit PW-4/1 was registered. He submits that the Tribunal has on conjectures and surmises come to a wrong conclusion.

( 4 ) COUNSEL for the Insurance Company says that the stand of the Insurance Company is that the accident has not taken place by the offending vehicle but even if the accident has taken place involving the offending vehicle, the Insurance Company is not liable under the policy for the death of the passenger in a goods vehicle.

( 5 ) HEARD counsel for the parties and have gone through the judgment under challenge as also the evidence on record. It appears to me that PW-5 an eye-witness to the occurrence is Constable Ranbir Singh, who deposes to the effect that on 19. 2. 1984 he was posted in Traffic unit Punjabi Bagh Circle. While on duty on General Store chowk he noticed a truck no. PB04695 approaching the ring road from Raja Garden going towards Britannia. The traffic light had just turned red and the truck in the attempt to cross the light swirled to the left. In that process the deceased fell out of the truck and was crushed under its rear wheel. The truck stopped at a short distance. It was impounded and the driver taken into custody. On the basis on information supplied by this witness an F. I. R. Exhibit PW-4/1 was registered. During the course of investigation it appears, the statement of this witness was recorded. PW-6 is sh. Ishwar Singh who deposes to the effect that he had sold Wheat to the deceased which was got loaded in Truck no. PBO4695 for carriage to Punjabi Bagh. The deceased was travelling in the aforesaid truck along with his goods.

( 6 ) PW-2 is the Investigating Officer who states that on 19. 2. 1984 he was posted at P. S. Punjabi Bagh and received a daily dairy no. 18-A dated 19. 2. 1984 for the purpose of investigation of the accident case. He reached the spot found Truck No. PBO4695 and dead body of a male person. He recorded the statement of Constable ranbir Singh, 813-T who was present on duty. On the statement of the Constable he got F. I. R. No. 102/84 registered under Section 279/304-A IPC. The site plan was prepared. The driver Pritam Singh was arrested on the spot and presented before the Metropolitan magistrate. On completion of investigation, challan was filed. Which case is now pending before the Metropolitan magistrate, Delhi.

( 7 ) FROM the statement of the aforesaid witnesses it can hardly be said that no accident took place in which the offending vehicle was involved resulting in the death of Shri. Jagmoha