JUDGMENT :

CHANDER BHUSAN BAROWALIA, J.

1. The instant appeal, under Section 173 of the Motor Vehicles Act, 1988, is maintained by the appellant/respondent No. 3/Insurance Company (hereinafter referred to as 'Insurance Company') for quashing and setting aside the impugned award, dated 4.8.2015, passed by the learned Motor Accident Claims Tribunal, Mandi, District Mandi, in Claim Petition No. 76 of 2013 and to allow the claim petition.

2. The factual matrix of the present case, briefly stated, are as under:

the deceased Murari Lal alias Mohan Lal, was working as labourer-cum-Munshi, with respondent No. 1 and was deployed with Tipper bearing registration No. HP-49A-0751. He was supervising the work of carriage, loading and unloading of the articles and also to handle proper account. On 19.11.2011, the deceased was looking after the work of carriage, loading-unloading of muck being carried in the tipper for its disposal in Tirthan Khad near Khundan Bridge. Around 10:00 p.m., the tipper was reversed back by the driver rashly and negligently in a high speed. The driver tried to unload the muck in Tirthan Khad, by pulling the jacks rashly and negligently and could not control the vehicle, as a result of which, the vehicle turned turtle and rolled down about 100 feet in Tirthan Khad. As a result of this accident, the deceased sustained multiple grievous injuries throughout his body including head injury and skull injuries, which proved fatal and he died on the spot alongwith one another occupant of the vehicle. At the time of accident, the deceased was 28 years old and he was the only bread earner of the petitioner.

3. Respondents No. 1 and 2, who are the owner and driver of the offending vehicle by filing reply taking preliminary objections qua maintainability. On merits, it has been averred that the involvements of the vehicle in question at the relevant date and time, resulting into death of deceased is also admitted, but it has been averred that danga of the road suddenly gave way while the tipper was being unloaded, as such, due to sinking of the danga, the accident took place, however respondent No. 2 was not driving the vehicle in a rash and negligent manner and there was no negligence on the part of respondent No. 2.

4. Respondent No. 3-Insurance Company has resisted and contested the petition by filing separate reply and submitted that the driver of the vehicle in question was not holding valid and effective driving licence and the vehicle in question was being driven in contravention of the terms and conditions of the Insurance Policy. It has further been averred that the deceased at the time of accident was traveling in the ill fated vehicle in capacity of gratuitous passenger and the liability of gratuitous passenger is not covered, under the terms and conditions of Insurance Policy.

5. The learned Tribunal below framed following issues on 16.10.2014:

"1. Whether the deceased Murari Lal alias Mohan Lal had died in a motor vehicle accident on account of rash and negligent driving of respondent No. 2? OPP.

2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled? OPP.

3. Whether the petition is not maintainable? OPR.

4. Whether the respondent No. 3 can be held liable to indemnify the amount? OPR-1 & 2.

5. Whether the vehicle was driving in breach of terms and conditions of the Insurance Policy? OPR-3.

6. Whether the respondent No. 2 was not having valid and effective driving licence at the time of the accident? OPR-3.

7. Relief."

6. After deciding issue Nos. 1 and 2 in favour of the petitioner, issue Nos. 3, 5 and 6 against the respondents, issue No. 4 in favour of the respondent, the learned tribunal below allowed the petition.

7. Mr. Jagdish Thakur, learned counsel for the appellant-Insurance Company has argued that there is no documentary evidence to prove the income of the deceased, in these circumstances, minimum wages were required to be taken into consideration. He has argued that min