ORDER :

In this appeal, the appellants have prayed for setting aside the award dated 22.09.2015 passed by the Motor Vehicles Accident Claims Tribunal, Hazaribagh in Claim Case No.94 of 2007, by which the Tribunal has award compensation amount of Rs.11,57,182/- to the claimants and directed the Insurance Company to pay the amount of compensation to the claimants.

2. I have heard the counsel for the Insurance Company, the counsel for the owner of the vehicle and the counsel for the claimants.

3. The only grievance of the Insurance Company-appellant is that the deceased was a roof top passenger, thus, the Insurance Company is not liable to reimburse the owner. It is the alternative prayer of the Insurance Company that right of recovery should have been given to the Insurance Company, to recover the amount of compensation already paid, from the owners of the offending vehicle. It is submitted that the Tribunal has wrongly fastened the liability of payment of compensation, ignoring the aforesaid fact, which would be apparent from the First Information Report itself.

4. Counsel for the owner, by relying upon a judgment of this Court in the case of Giriraj Prasad Agrawal versus Parwati Devi and Kali Paharin reported in 2005 3 JLJR 24 (Jhr) has argued that there is nothing in the deposition of the witnesses to conclude that the deceased was a roof top passenger. He submits that even if the deceased was a roof top passenger, in view of the judgment of Full Bench of this Court, it is the Insurance Company, who has to indemnify the owner, when admittedly, the vehicle was insured.

5. The claimants submit that they are entitled to the compensation amount, which has been awarded. They submit that they are entitled for a compensation at an enhanced rate, but, the counsel admitted that they have neither filed cross objection nor filed separate appeal claiming enhancement.

6. Considering the submission of the parties and the fact that there is no appeal for enhancement by the claimants, nor there is any cross objection, the issues, which fall for consideration in this appeal are as under: -

(I) Whether the deceased was a roof top passenger?

(II) Whether the Insurance Company is liable to indemnify the owner of the vehicle and/or right to recovery should be given to the Insurance Company?

7. Since this is the only controversy in this appeal, I am not entering into the other aspects, i.e., the factum of accident, involvement of the offending vehicle, age of the deceased etc., which are admitted, nor I am entering into the quantum, since there is no challenge to the quantum.

8. To consider the aforesaid issues, I have gone through the evidence. Three witnesses were examined in this case on behalf of the claimants. Claimant Witness No.1, Parmeshwar Thakur, who is the son of the deceased Doman Thakur. He stated that on 29.08.2006, they were travelling in a vehicle bearing registration No. JH 12B 2323 from Koderma Railway Crossing to Kuju. When the vehicle reached near Parwati Nurshing Home, the deceased fell from the vehicle as the vehicle was being driven rashly and negligently. Deceased was admitted to the Parwati Nurshing Home, where he died on 29.08.2006. Nowhere in his evidence, this witness has stated that the deceased was a roof top passenger. He remained silent on this issue, though he admitted that his father fell down from the vehicle. In paragraph 7, he admitted that Tilaiya Police Station Case No.391 of 2006 for offences under Sections 279/304A of the Indian Penal Code was instituted for this accident. In cross examination, he admitted that there were 15-16 passengers on that vehicle in the model name “SAVARI”. In his cross examination, he stated that he was sitting inside the vehicle, but, kept mum as to where his father was sitting. From the aforesaid evidence, it is quite clear that he is an eye witness to the occurrence. C.W.2 is Sudama Devi, who is the wife of the deceased. Admittedly, she is not the eye witness to the occurrence, thus, she