ORDER :

This appeal under section 173(1) of the Motor Vehicles Act, 1988 by t h e appellants who are owner and driver against impugned award dated 10.4.2019 passed by Motor Accidents Claims Tribunal, Katni (for short the “Tribunal”) in MACC No.281/2017 for setting aside the award as against them.

2. Brief facts of the case are that respondents No.1 to 6/claimants filed claim petition under section 166 of the Motor Vehicles Act before the Tribunal stating that deceased-Sanjay Singh was husband of respondent No.1, son of respondents No.2 & 3 and father of respondents No.4 to 6. On 28.6.2016 at about 10 p.m. the deceased was sitting as a labourer in carrier ‘Dala’ of the Truck bearing registration No. MP-1/GA-0332 and was travelling from Katni to Basadi. The deceased fell asleep in ‘Dala’ of the Truck and the appellant No.2 (driver) rashly and negligently got the sand filled in ‘Dala’ of truck by proclaim machine due to which the deceased came beneath the sand and died of having been buried in the sand. On the next day morning i.e. 29.10.2016 when the sand was dumped the body of deceased was found dead. It was further contended by the claimants that at the time of accident with offending vehicle was owned by appellant No.1, driven by appellant No.2 and insured with the respondent No.7-Shriram General Insurance Co.Ltd. (hereinafter referred to as the “Insurance Company”). After recording of Marg, the Police Station, Kuthla, District Katni registered offence as Crime No.72/17 under section 304 of IPC. At the time of accident the deceased was aged 34 years and was earning Rs.6,000/- per month as a labourer. The respondents/claimants claimed Rs.19,64,000/- as compensation with interest from appellants and respondent No.7 jointly and severally.

3. The appellants filed written statement and denied the adverse allegations. They contended that on 29.10.2016 the truck was driven carefully and no accident took placed with said truck. The respondents/claimants have filed false and fabricated claim in order to get the compensation. The truck was insured with respondent No.7/Insurance Company. The truck was operated in accordance with the conditions of policy. The appellant/driver was possessing a valid driving licence and was competent to drive the said truck. Hence, they claimed dismissal of claim petition.

4. The respondent No.7/Insurance Company also filed its written statement contending that deceased was not travelling in truck as a labourer. Infact, the deceased alongwith his friends had consumed country made liquor in a shop situated at Ghantaghar, Katni in night hours. When the truck stationed at Julha Bye-pass the deceased without informing the driver and conduct of the truck sat inside ‘Dala’ of truck. Due to intoxication he felt asleep in ‘Dala’ and in night hours sand was loaded in ‘Dala’ of truck and he came underneath the sand as a result he expired. When the sand was unloaded in next day morning then dead body of deceased was found. The act of the driver and conductor for not checking ‘Dala’ of truck in the nigh while loading the same does not fall in the category of rash and negligent act. It was also contended that deceased was not travelling in the truck as a labourer or gratuitous passenger or paid passenger, but was travelling as an unauthorized person without knowledge of the driver. The truck was being driven by appellant No.2 with permission of appellant No.1 without possessing valid driving licence, valid permit and fitness. Therefore, it is not liable to indemnify on account of breach of terms and conditions of insurance policy.

5. The Tribunal framed five issues and after recording evidence as hearing both the parties passed the impugned award dated 10.4.2019 and awarded compensation of Rs.10,78,000/- alongwith interest at the rate of 6% per annum. The Tribunal exonerated the respondent/Insurance Company from its liability to pay compensation and saddled the same on the appellants.

6. Being aggrieved by the aforesaid impu