JUDGMENT :

Sanjeev Kumar, J.

1. The wife of the deceased late Gander Malik, who was claimant before the Motor Accident Claims Tribunal, Bhaderwah (hereinafter referred to as the 'Tribunal'), is in appeal against the award dated 31.03.2004 passed by the Tribunal in file No. 58/claim titled 'Mst. Sakeena Begum vs. Ashwani Kumar and ors'.

2. This appeal has been filed primarily on the ground that the compensation awarded by the Tribunal is too meager, to be called just and fair and also that the Tribunal, in the given facts and circumstances, failed to apply the principle of 'pay and recover' and erroneously absolved the New India Assurance Company Ltd., ['insurer'] of its liability to pay compensation to the appellant [claimant].

3. The bare minimum facts relevant to disposal of this appeal may be noticed herein below:

On the fateful day, deceased Gander Malik, the husband of appellant boarded a load carrier bearing registration No. 4861-JKS [the offending vehicle] at village Malhori. The offending vehicle was going towards Pul Doda and just a few yards before the destination, it met with a fatal accident at Napli. The offending vehicle skidded off the road and plunged into the river causing the death of the deceased.

4. On the allegation that the deceased had died in the motor vehicle accident due to rash and negligent driving of the offending vehicle by its driver, the respondent No. 3, a claim petition was filed by the appellant before the Tribunal arraying Mushtaq Ahmed, the driver, Ashwani Kumar, the owner and the insurer as party respondents. The claim petition was contested only by the insurer.

5. On the basis of pleadings of the parties, the Tribunal framed the following issues:

(i) Whether the deceased Gander Malik died in a vehicular accident on 19.03.1996 at Napli Doda which occurred due to the rash and negligent driving by respondent No. 3? OPP.

(ii) On proof of issue No. 1, to what amount of compensation the petitioner is entitled and from whom? OPP

(iii) Whether the deceased was travelling as gratuitous passenger and the petitioner is not entitled to any claim? OPR 2

(iv) Whether the vehicle was being driven by an un-authorized person and the respondent No. 2 is not liable to pay the amount of compensation? OPR 2

(v) Relief.

6. With a view to substantiate her claim, the appellant, besides examining herself, also examined PWs Ghulam Hussain and Mohd Amir as her witnesses. The insurer, however, chose not to lead any evidence.

7. Based on the evidence on record, the Tribunal held issue No. 1 proved in favour of the appellant and against the respondents. On issue No. 2, the Tribunal concluded that the monthly income of the deceased, at the time of accident, was Rs. 1500/- and, accordingly held the appellant entitled to total compensation of Rs. 1,20,000/-. On issue No. 3, the Tribunal held that the deceased was a gratuitous passenger travelling in a goods vehicle and absolved the insurer of its liability to indemnify the insured and pay compensation to the appellant. This way, issue No. 3 was decided in favour of the insurer and against respondent Nos. 2 and 3, the owner and the driver of the offending vehicle respectively.

8. Respondent No. 1, the insurer, who is absolved of its liability to pay compensation to the appellant alone is contesting this appeal.

9. Mr. Chouhan, learned counsel appearing for the insurer, does not only oppose the appeal on quantum, but also joins issue with the appellant on the question of liability of insurer towards third party in the case of a gratuitous passenger travelling in a goods vehicle. He, despite being aware that this issue has already been authoritatively decided by this Court in the cases of Bajaj Allianz General Insurance Co. Ltd. vs. Satya Devi and ors., (MA 197/2014), decided on 14.01.2020 and Bajaj Allianz Insurance Company Ltd. vs. Rafiq Ahmed and another, (Mac App No. 14/2020 an