Deepak Gupta, J - This appeal under Section 173 of the Motor Vehicles Act is directed against the award of the Motor Accident Claims Tribunal, Solan in MAC Petition No. 24-S/2 of 2001, decided on 25.3.2001.

2. A short but interesting question arises for decision in this appeal. The question which arises is whether a person who is in the process of getting on to the vehicle should be termed as a passenger or a third party? The law is well settled that the Insurance Company cannot be held liable to pay compensation to the passengers being carried in a goods carriage. However, it is liable as far as third party is concerned.

3. The facts necessary for decision of the case are that claimant Surinder Kumar filed a petition for grant of compensation under Section 166 of the Motor Vehicles Act. In this petition, it was alleged that on 20.2.2000, when he was in the process of boarding a truck No. HP-11-2000, the driver of the truck suddenly drove the truck without caring to see whether the petitioner boarded the truck or not. As result of the jerk, the petitioner fell down and his left arm was crushed. In para 24 of the claim petition, it was averred as follows:- "........On the fateful date, the petitioner was standing by the side of the road and he had to take the lift in the truck. When the truck No HP-11-2000 reached the petitioner on seeing the signal of the petitioner, the respondent No. 2 stopped the truck and when the petitioner was in the process of boarding the truck the respondent No. 2 drove the truck all of a sudden without caring to see that the petitioner had boarded the truck and had come inside the truck and due to jerk and negligent act and driving, the petitioner fell on the road and his left arm was crushed........."

4. The owner and driver in their reply took the following defences "9. That contents of para 10 as represented are wrong, hence denied, the petitioner has no concern with truck No. HP-11-2000, when the truck was going on uphill side, the petitioner without any notice etc.. or without any right tried to climb running truck and in this process fell down. The petitioner had no business to board the truck. The petitioner has concocted a false story that when he was trying to board the truck, the same was driven all of sudden, the real facts are that he tried to climb up a running truck. "17............. The petitioner was not seen by respondent No. 2 standing on the road, nor he gave any signal to the respondent No. 2 for the purpose of taking lift. The petitioner had no right to take lift in the truck, it is emphatically denied that on receiving signal respondent No. 2 stopped the truck and when the petitioner was in process of boarding the truck he drove the truck all of a sudden without caring to find out that whether the petitioner has boarded the truck order, as alleged. The real facts are that the truck was going uphill side, the petitioner without any notice of signal tried to board the truck, which was in running condition and in this process fell down. The accident has occurred due to negligence and fault of the petitioner. The petitioner cannot take benefit of his own wrong, the respondent No. 2 only came to know about the accident when heard noise, earlier he had not noticed the petitioner standing on the road or in process of running and trying to get on the truck."

5. The learned Tribunal on the basis of the evidence led before it came to the conclusion that the accident occurred due to the negligent driving of the truck driver and further held that the claimant-petitioner was entitled to Rs.1,72,000/-. A according to the Tribunal since the claimant-petitioner was a passenger in the vehicle in view of the judgment of the Apex Court in New India Assurance Co. Ltd. v. Asha Rani and others, 2003 ACJ 1, the Insurance Company was not liable since the claimant admittedly a gratuitous passenger. This finding of the Tribunal has been challenged in this appeal and it is contended that the injured c