1. 1. By filing instant Misc. Appeal the appellant Insurance Company has challenged the judgment/award dated 7-1-2006 passed by learned Motor Accident Claims Tribunal, Malpura (Tonk) (for short the learned Tribunal ) in MACT Case No. 55/2002, whereby the learned Tribunal has ordered the non-claimant No. 5 (present appellant) and non-claimant No. 4 (respondent No. 7) to pay a sum of Rs. 3,34,000/- as compensation to the claimants (respondents No. 1 to 3) with interest @ 6% p.a. from 5-3-2005 till payment, severally and jointly.

2. Brief facts of the case are that the respondents No. 1 to 3/claimants filed the claim petition before the learned Tribunal only against the respondents No. 4 to 6/non-claimants No. 1 to 2 (i.e. the driver, owner and the insurer of the tanker) stating therein that on 9-1-2002 deceased Jagdish was driving the trolla bearing No. RJ-14/1G-1959 and was going on National Highway No. 14 when a tanker bearing No. RJ-22/G-1141 came from its opposite direction in a rash and negligent manner, came on its wrong side and hit the trolla, with the result the deceased sustained grievous injuries and was taken to hospital where he died. The tanker was being driven by Tejaram and was owned by Bhikamchand and was insured with United India Insurance Co. (non-claimants Nos. 1 to 3). The police after investigation filed the charge-sheet against the driver of the tanker. The heirs of the deceased filed the claim petition against the driver, owner and the insurer of the tanker. However, later on the respondents No. 1 to 3/claimants with the permission of the learned Tribunal also added the owner of the trolla M/s. Rohit Lines and the insurer of trolla i.e. the appellant Insurance Company as non-claimants No. 4 and 5. It has also been mentioned in the claim petition that the deceased was 35 years and was earning Rs. 4,000/- p.m.

3. The owner of the trolla non-claimant No. 4 did not appear despite service and as such ex parte orders have been passed against him. The appellant insurance company/non-claimant No. 5 in their reply denied the material facts of the claim petition and some objections have also been raised by them in their reply.

4. Reply was filed, issues were framed. The learned tribunal after hearing both the parties passed the impugned judgment. Hence, instant misc. appeal.

5. Learned counsel for the appellant insurance company submits that the learned tribunal was of the view that the deceased was negligent and was responsible for the accident to the extent of 40%. According to him the deceased was negligent in driving of the trolla, he could not get any compensation either from that the owner of the trolla or from the appellant insurance company with whom the trolla was insured. The quantum of compensation awarded by the learned tribunal is highly excessive. Lastly, he submits that either the appellant Insurance Company be exonerated from its liability or the impugned award passed by the learned Tribunal be quashed and set aside qua the appellant insurance company.

6. Per contra, learned counsel appearing for the claimants respondents submit that the learned tribunal framed the aforesaid seven issues after properly considering the facts of the case. Issue No. 1 has been decided in favour of the appellant and in the aforesaid issie it has been decided that Jagdish (deceased) died due to the aforesaid accident. Issue No. 2 has been partly allowed. So far as issue No. 3 is concerned, deceased Jagdish died due to his own negligence. Issue No. 4 has been decided in favour of the claimants respondents. Issue No. 5 relates to the post-mortem and the certificate regarding the age of deceased Jagdish that at the time of accident deceased Jagdish was 35 years of age. At the time of accident the deceased was driver and was earning Rs. 4,000/- per month which has been certified by AW-1 Ramkanya, AW-2 Mahaveer Prasad Sharma and AW-3 Chhotu Singh alias Rameshwar Singh. The learned Tribunal has rightly assessed the income