Hon’ble Krishna Singh, J.—This appeal has been filed against the impugned judgment and order dated 16.8.2004 passed by the Motor Accident Claim Tribunal/Additional District Judge, Court No. 5, Agra (hereinafter referred to as ‘Tribunal’) in Motor Accident Claim Petition No. 843 of 2003 (Smt. Radha Devi and others v. The Oriental Insurance Company Ltd.). By means of the impugned judgment and order the Tribunal has proceeded to dismiss the aforesaid petition on following grounds;

I. Petitioners filed the claim petition under Section 163 of the Motor Vehicle Act, 1988 before the Tribunal with the allegations that at the time of accident annual income of the deceased was Rs. 1,10,000/- per annum which is more than the limit (Rs. 40,000/- per annum) as mentioned in the second schedule of Section 163-A of the 1988 Act. Therefore, the claim petition was not maintainable under Section 163-A of the 1988 Act.

II. The evidence adduced by the petitioners in respect of the accident is self contradictory upon which reliance cannot be placed.

2. We have heard learned counsel for the parties and perused the record.

3. Brief facts giving rise to the instant appeal are that on 24.6.1999 the deceased Kundan Singh was travelling in Tanker No. U.P. 85 9307 being the owner of the aforesaid tanker and supplier of Koltar and he was going to Bah to supply the Koltar in Public Works Department. On returning from Bah, the deceased was sitting on the tool box of the tanker and at that time the tanker was being driven rashly and negligently by the driver as a result of which the deceased fell down on the road from the tanker and died due to injuries sustained. The said accident had occurred due to rash and negligent driving of the driver of the tanker.

4. The FIR was registered at the police station Rakabganj, Agra. It appears from the record that after investigation of the case, charge-sheet No. 28 of 1999, under Sections 279 and 304-A IPC, was submitted by the Investigating Officer of police station Basai Arela, Agra against the driver of tanker No. U.P. 85 9307. Site map was prepared by the Investigating Officer. Postmortem of the deceased was conducted and postmortem report was submitted by the doctor concerned on 24.6.1999.

5. Respondent insurance company appeared before the Tribunal and filed its written statement with the pleadings that the claimants have neither any cause of action nor any basis for the claim petition against the respondent insurance company. The claim petition is misconceived on facts and law. The respondent insurance company is neither proper party nor is liable to pay any compensation to the claimants.

6. It reveals from the record that the appellants filed claim petition No. 843 of 2003 under Section 163-A of the Motor Vehicle Act, 1988 (hereinafter referred to as the ‘1988 Act’) before the Tribunal for awarding the compensation for the death of the deceased.

7. Learned counsel for the appellants submitted with vehemence that the impugned judgment and order passed by the Tribunal is against the fact and law. The appellants are the legal representatives and dependents of the deceased. The deceased was the owner of the offending tanker No. U.P. 85 9307 and at the time of accident the aforesaid tanker was insured with the respondent insurance company. The deceased met with the accident due to rash and negligent driving of the tanker driver. In the aforesaid circumstances, the respondent insurance company is liable to pay the compensation for the death of the deceased to the appellants.

8. Per contra learned counsel for the respondent insurance company submitted that under Section 163-A of the 1988 Act claim petition can be filed only by the third party. Owner of the vehicle in question is not a third party in the present case. Learned counsel for the respondent supported the impugned judgment and order passed by the Tribunal and also submitted that owner of the vehicle can only claim provided if personal accident insuranc