Mr. Hemant Gupta, J.: - This order shall dispose of afore-mentioned six appeals raising common question of law; as to whether the Insurance Company is liable to pay compensation in respect of injuries/death of the passengers travelling on the roof of the bus.

2. The said appeals have been placed before us in view of the conflict of two judgments of this Court reported as The New India Assurance Co. Ltd. Vs. The Samundri Roadways Co. Pvt. Ltd. and others 1984 PLR 689 and New India Assurance Co. Ltd. Vs. Punjab Government and others 1989 (2) PLR 568. Since the issue is legal, the facts, as are necessary for appreciating the question raised, are taken from FAO No.1043 of 1991.

3. In the said case, Jai Pal (deceased) boarded the bus bearing registration No.HYM – 1438 from Rewari to go to village Dhawana. The said bus was over-loaded and so Jai Pal and other passengers boarded the roof of the bus, which was driven by Hari Chand. The bus was being driven in a rash and negligent manner. When the said bus reached in the area of village Katopur, Rewari, on Rewari-Narnaul road, a rickshaw came from the opposite direction. The driver of the bus, swerved the bus towards his left, as a result of which a branch of Banyan tree (Pipal) standing by the road side, hit the head of Jai Pal, who sustained injuries and later on succummbed to the same in Civil Hospital, Rewari.

4. During the course of evidence before the learned Motor Accident Claims Tribunal, Rewari (for short ‘the Tribunal’), PW-2 Amar Singh – a fellow passanger, deposed to the effect that the bus was over-loaded and 30/35 passengers were sitting on the roof of the bus. He deposed that near village Katopur, Rewari, a rickshaw was spotted coming from the Narnaul towards Rewari and to give passage to the rickshaw, the bus driver swerved the bus to the extreme left and a Baniyan tree struck against the head of Jai Pal (deceased). On the basis of such evidence, the learned Tribunal recorded a finding that the driver of the bus was driving the bus in a rash and negligent manner. After returning such finding, the learned Tribunal awarded compensation of Rs.1,80,000/- and interest at the rate of 12% per annum.

5. Before this Court at the time of motion hearing, learned counsel for the appellant relied upon a Single Bench judgment reported as The New India Assurance Co. Ltd. Vs. The Samundri Roadways Co. Pvt. Ltd. and others 1984 PLR 689 that the Insurance Company is not liable to pay compensation in respect of death and injury of the passangers on the roof top of the bus. Later on, the appeal was admitted by the Division Bench, as the Bench noticed conflict with another judgment reported as New India Assurance Co. Ltd. Vs. Punjab Government and others 1989 (2) PLR 568.

6. Learned counsel for the appellant has referred to National Insurance Co. Ltd. Vs. Anjana Shyam and others [2007(3) Law Herald (SC) 2588] : (2007) 7 SCC 445 and National Insurance Co. Ltd. Vs. Cholleti Bharatamma and others [2007(5) Law Herald (SC) 3451] : 2008 (1) PLR 315 to contend that the Insurance Company is liable to pay compensation in respect of the passengers, which a vehicle is permitted to carry. Since the passengers on the roof of the bus are not permitted, therefore, the compensation is not payable on account of injury or death to the passengers on the roof top. It is also argued that carrying of passengers on the roof top is violation of the policy conditions, therefore, the Insurance Company is not liable to pay compensation. It is argued that in the alternative, the Insurance Company should be given liberty to recover the amount from the owner in these proceedings in view of the judgments of Hon’ble Supreme Court reported as Sohan Lal Passi Vs. P. Sesh Reddy and others (1996) 5 SCC 728 and Oriental Insurance Co. Ltd. Vs. Shri Nanjappan and others (2004) 13 SCC 224.

7. On the other hand, learned counsel for the claimants have relied upon number of judgments such as New India Assurance Co. Ltd. Vs.