V.K. Ahuja, J. -This is an appeal filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act, against the award passed by the learned Motor Accident Claims Tribunal-II, Solan, dated 10.3.2004, vide which the petition filed by respondents No. 1 to 4 under Section 163-A of the Motor Vehicles Act was allowed as against the appellant and others and a sum of Rs.2,48,000/- was awarded in favour of respondents No. 1 to 4.

2. Briefly stated, the facts of the case are that a claim petition under Section 163-A of the Motor Vehicles Act was preferred by respondents No. 1 to 4 as against respondent No. 5 who was impleaded as driver and as against respondent No. 6, who was impleaded as owner/respondent No. 3, while Insurance Company i.e. the appellant was impleaded as respondent No. 2. It was alleged by the petitioners that the deceased Kamal was traveling in truck bearing No. HP-11-0721 from Delhi to Arki after selling his produce on 2.7.1996. The truck was being driven by respondent No. 1 Madan in a rash and negligent manner. The deceased suffered injuries in an accident that took place near Mehmoodpur, Police Station Malana, District Ambala, Haryana, and succumbed to the injuries at Chandigarh. The deceased was agriculturist and Mason by profession and was earning Rs.3,000/- per month. Respondents No. 1 to 4 being widow, sons and mother of the deceased, claimed that they were dependent upon the deceased and they filed the petition claiming compensation.

3. The owner and driver denied that the vehicle was involved in the accident. The Insurance company took up the plea that the driver was not having a valid and effective driving licence. They also took up the plea that the deceased was not employee of the insured and was traveling in the vehicle as a gratuitous passenger. The petition was tried by the learned Tribunal who held that the accident took place due to rash and negligent driving of the driver of the vehicle. It was held that the deceased was not traveling as a gratuitous passenger. It was also held that it has not been proved that the driver was not having a valid and effective driving licence. Accordingly, the petition was allowed as against all the respondents but the Insurance Company was directed to deposit the amount in full.

4. I have heard the learned counsel for the parties and have gone through the record of the case.

5. The appellant has challenged the findings of the learned Tribunal on two grounds, firstly that no accident of the truck had taken place and secondly, that the deceased was a gratuitous passenger.

6. Coming to the first point that no accident of the truck had taken place, the learned Tribunal had referred to the testimony of PW Gurnam Singh, who had proved the report Ext. PW1/A in which it was clearly mentioned that the deceased was on return journey of the truck when the accident took place. The proceedings under Section 174 Cr.P.C. were conducted and report was filed and no negligence was attributed to the truck driver mainly on the ground that it was reported in the report that the deceased was traveling in the tool box of the truck and was hit by the branch of the Kikker tree. The owner of the truck examined himself as RW-1 and stated that his truck had not met with any accident and no case was registered against the driver. Respondent No.1/driver who examined himself as RW-2 stated that his truck has not met with any accident.

7. The learned Tribunal after referring to the evidence had concluded that in case the driver had allowed the deceased to sit in the tool box, he cannot be absolved of his liability since his act was negligent in allowing the deceased to sit in the tool box. Therefore, the vehicle may not have been directly hit with any other object, but the accident had taken place during the course of the driving of respondent No. 1. The learned Tribunal had concluded on the basis of the evidence that it has been proved that the driver was driving the