M. Y. EQBAL, J.

( 1 ) THESE two appeals have been referred to Full Bench for testing the correctness of two decisions of this court, one by Division Bench in the case of Bholla Nath Yadav v. Hemwati, 2003 (1) JCR 105 (Jhr) and the other by a learned single Judge in Oriental Insurance Co. Ltd. v. Jashmani Kongari, 2003 ACJ 155 (Jharkhand ).

( 2 ) FACTS which have given rise to the present controversy may be stated: the deceased along with other persons were travelling by bus on the relevant date of accident. The deceased was sitting on the roof of the bus. When the bus reached near Jaruadih More, several mango trees were spread towards road and the deceased who was on the roof of the bus, sustained grievous head injury. Deceased was taken to hospital and subsequently he died. In another case, the deceased was travelling on the roof of the bus. Because of rash and negligent driving the deceased fell down from the bus and succumbed to injuries.

( 3 ) THE respondent insurance company, on being noticed, appeared and filed written statement taking a defence that the vehicle was insured against third party risk under which insurer is not liable to pay compensation as there was