Honble MAHESHWARI, J.–The insurer of truck bearing registration number DEL-130 has preferred this appeal under Section 173 of the Motor Vehicles Act against the award dated 29.6.1996 made by the Motor Accident Claims Tribunal, Dungarpur (`the Tribunal) in Claim Case No.5/1992 in so far the Tribunal has refused to exonerate the insurer from its liability for compensation arising out of an accident of the said truck on the ground that the victim was a gratuitous passenger in the vehicle and the insurer has not covered any such risk. (2). Brief facts relevant for determination of the questions involved in this appeal are that the respondents No.1, 2 & 3 Smt. Rodi, Smt. Roopa and Bhera filed a claim application on 6.12.1991 before the Tribunal against Dilip Chand @ Pappuram Bhatia and Bharat Bhushan S/o Dilip Chand Bhatia, both residents of L-117/6, Laxmanpur, Pahadganj, New Delhi in the capacity of respectively the driver and owner of the vehicle and the appellant New India Insurance Company as the insurer. it was averred that he claimants were respectively the wife, mother and father of deceased Kaluram Rawat Meena aged about 27 years and that the non-applicant No.2, Bharat Bhushan was the employer of the deceased and it was alleged that the deceased was working on his vehicle DEL 130 as a labourer. (3). Facts regarding the accident were stated in the manner that the accident occurred on 13.6.1991 at 5.30 p.m. at Pulia No.357/3 near Bhuvali on National Highway No.8 going from Udaipur to Ahmedabad when the non-applicant No.1 driving the Truck DEL 130 rashly and negligently hit and damaged the bridge and the vehicle fell about 125 fts. down below. It was stated that Kaluram sustained several grievous injuries and died on the spot. FIR No.153/1991 was registered in Police Station, Bichchhiwara, District Dungarpur and a challan was filed after investigation. In the particulars, as to whether the deceased was travelling in the vehicle involved in the accident, it was stated that on the date of accident i.e., 13.6.1991 the deceased Kaluram and so also Ganesh, Bhagaram and Nathuram were working as labourers on the truck in question and were going to Delhi with the truck for unloading the goods. The vehicle was shown to be insured with the appellant New India Assurance Co. The vehicle was shown to be insured with the appellant New India Assurance Co. Ltd. at its branch No.310801 at Asaf Ali road, New Delhi under Cover Note No.228542 valid from 16.5.1991 to 15.5.1992. Compensation to the tune of Rs.6,05,000/- was claimed on different heads. Liability for compensation was stated in the manner that non-applicant No.1 was the driver, non- applicant No.2, the owner and non-applicant No.3, the insurer of the vehicle and, therefore, all the three non-applicants were liable for compensation. (4). In the claim application, the insurer non-applicant No.3 put in appearance and filed reply on 18.3.1993 and an order under Section 140 of the Act for interim compensation was also passed on 17.7.1993. However, the non-applicants No.1 and 2, the alleged driver and the owner of the vehicle were not served despite repeated efforts and ultimately presumption of their service was drawn on 17.11.1995 when the notices sent by registered post acknowledgment due were not returned back serviced or unserved. (5). The insurer appellant in its reply denied all the claim averments including the averment that the deceased Kaluram was working as a labourer on the Truck DEL 130 and it was arrested that the deceased and other persons named in the claim application were travelling as passengers in the truck. It was submitted that the vehicle in question was a goods vehicle and no passenger could be allowed to travel in the same; the persons named in the application were travelling as passengers, therefore, there was no liability of the insurer. It was also pointed out that the truck owner lodged a claim of own damage relating to the truck, and an investigation was got conducted by the insurer in which it was found that the vehicle was being driven by one Pappu, who flee away from the scene after the accident as he was not having valid driving licence and the name of Dilip Chand Bhatia was falsely suggested as driver of the vehicle. It was asserted that Dilip Chand Bhatia was not driving the vehicle nor he was known by alias of Munnaram or Pappu as alleged. (6). It was asserted that Dilip Chand Bhatia was not driving the vehicle nor he was known by alias of Munnaram or Pappu as alleged. (6). After framing of the issues necessary for determination of the questions involved in the case, the Tribunal proceeded to take evidence led by the parties and apart from production of documentary evidence, the claimants examined Smt. Rodi wife of the deceased as PW.1 and Ganesh S/o Malji as PW.2; whereas on 29.6.1996, the insurer examined one witness Mahendra Kumar Talesara as DW.1. On this very day of 29.6.1996, learned Judge of the Tribunal heard the parties finally and passed the impugned award. (7). The comprehensive question in issue No.1 about the incident and its cause and resultant injuries and death of Kaluram was decided in favour of the claimants with reference to the statement of PW.2 Ganesh, who was also travelling in the same truck and so also the documentary evidence. In issue No.2, it was found that the vehicle was of the ownership of the non-applicant No.2 and it was being driven by the non-applicant No.1 in the employment of the owner. (8). In issue No.3, the question was about the liability of the insurer and learned Judge of the Tribunal dealt with the contention raised by the insurer that the deceased was not a labourer on the vehicle but was travelling as a passenger. The learned Judge referred to the investigation report obtained by the insurer Exhibit A/2 and observed that the report Exhibit A/2 was not even worth the paper on which it was printed; the investigator had not been produced and the witness of the insurer was not knowing anything about Exhibit A/2. the learned Judge observed that according to the PW.2 Ganesh, the truck driver had taken the labourers for the purpose of unloading the goods and if labourers were taken on the truck for emergent work, they could not be treated to be the passengers and, therefore, issue No.3 was decided against the insurer. the learned Judge observed that according to the PW.2 Ganesh, the truck driver had taken the labourers for the purpose of unloading the goods and if labourers were taken on the truck for emergent work, they could not be treated to be the passengers and, therefore, issue No.3 was decided against the insurer. The consideration adopted by the learned Judge on this question read as under:- ^^------- ih-MCyw- 2 x.ksk us dgk gS fd Vªd pkyd us mUgsa crkSj geky lkeku mrkjus ds fy, Vªd esa cSBk;k FkkA eSa ikrk gwa fd bl lk{; dks dksbZ [k.Mu ugha gSA etnwjksa dks vkdfLed dk;Z ds fy, ;fn Vªd ij p<k;k x;k Fkk rks mUgsa ;k=h dh laKk iznku ugha dh tk ldrhA ,slh fLFkfr esa bl fook/kd dk fu.kZ; foi{kh la- 3 ds fo:) fd;k tkrk gSaA** (9). Taking up the quantification of compensation, learned Judge found the claimants entitled for a compensation of Rs.1,09,500/- and made an award for this amount along with interest at the rate of 12% per annum on payment within 60 days, else at the rate of 15% per annum. (10). The insurer has assailed the award dated 29.6.1996 fundamentally with the submissions that the vehicle in question was a goods vehicle and the insurance agreement between the parties as shown from Exhibit 1 makes it clear that the appellant has not undertaken any additional liability with respect to any passenger or even labourers that may be boarded in the vehicle and the learned Judge of the Tribunal was in serious error in not exonerating the insurer. it has also been submitted that on the facts of the present case, the insurer deserves to be absolved and the claimants may recover compensation from the driver and owner of the vehicle. Learned counsel for the claimants has supported the impugned award and submitted that the deceased was a labourer on the truck and not a gratuitous passenger. Learned counsel further submitted that the claimants have suffered the loss of their bread-earner and they should not be deprived of just compensation and insurer ought to make payment of remaining amount of award. (11). Learned counsel further submitted that the claimants have suffered the loss of their bread-earner and they should not be deprived of just compensation and insurer ought to make payment of remaining amount of award. (11). Having given a thoughtful consideration to the rival submissions and having examined the entire record, this Court finds that the learned Judge of the Tribunal in the present case has proceeded in a wholly cursory manner and has not even looked at the material directly available on record and so also the law applicable to the case. The impugned award deserves to be modified in so far it relates to the liability of the appellant insurer. (12). The report Exhibit A/2 of the private investigator may not have any probative value for the questions involved in this case but for that matter, all other material available on record could not have been ignored. Having examined the entire record, this court finds that the Tribunal has proceeded in such a hurried manner that neither the claim averments nor the documentary evidence nor the oral evidence have been given due consideration, an example of which could be seen from the fact that the document Exhibit 1 which has been taken as an alleged FIR relating to the accident in question does not relate to this accident at all. The said FIR is numbered 154/1991 and has been lodged by one Velji against driver of a tanker bearing registration No.GJ-2/T-6930 which had been alleged to have hit another truck standing at Khujari Highway. This document Exhibit 1, available at page C-9/2 of the record is not he FIR concerning the accident in question. In fact, a photostat copy of the FIR relating to the present case has been filed by the insurer and is available at page C-9/19 of the record but it has never been exhibited in evidence. (13). Leaving aside the aforesaid as a minor omission, the significant facts relating to the accident which shows clearly that the deceased was not and cannot be a labourer on the vehicle have totally been omitted from consideration in this case. A close scrutiny of record makes it clear that a cooked up and false story was put forward by the claimants about engagement of the deceased as a labourer on the truck in question. A close scrutiny of record makes it clear that a cooked up and false story was put forward by the claimants about engagement of the deceased as a labourer on the truck in question. It has been alleged in the claim application that the deceased Kaluram with Ganesh, Bhagaram and Nathuram were working as the labourers on the truck DEL 130 and were going to Delhi to unload the goods. The averments in Para 7 in the claim application read as under:- ^^nq?kZVuk dh fnukad 13-6-1991 dks e`rd dkywjke] x.ksk ,oa Hkkxkjke] ukFkwjke vUrZofyr Vªd la[;k Mh-b-,y- 130 ij etnwjh dk dk;Z djrs Fks vkSj Vªd ds lkFk eky [kkyh djus fnYyh tk jgs FksA** (14). In the claim application it has also been asserted that the deceased was employed as a labourer on the said truck and the name of the employer has been stated as that of the vehicle owner. However, the statement of PW.2 Ganesh stands squarely contrary to the claim averments on material particulars. PW.2 Ganesh who was one of the co-passengers with the deceased has stated thus,- ^^djhc ikap lky igys dh ckr gS] eSa] dkywjke ¼e`rd½] Hkkxkjke vkSj ukFkwjke pkjksa tus xkM+h ij gekyh dk dke djus x;s Fks mn;iqjA ;g xkM+h fnYyh ls vk jgh Fkh] mldk uacj eqÖks ;kn ugha gSA mlds pkyd us gesa dgk fd bl Vªd ls lkeku mrkjuk o p<+kuk gS] esjs lkFk pyks etnwjh djus] bl ij ge pkjksa ml Vªd esa cSB x;s vgenkckn ds fy;s jokuk gks xbZ og VªdA** (15). In the cross-examination also, he has stated that they had loaded cartons in the truck at Udaipur. In the words of PW.2 Ganesh,- ^^;s geus mn;iqj ls ml Vªd esa Hkjs Fks dkVwZu FksA ,d ,d dkVwZu djhc 50 fdyks otuh gksxkA eSus djhc 40 dkVwZu p<+k;s Fks] nwljksa us fdrus p<k;s eqÖks irk ughaA Vªd ij f=iky ca/kk gqvk FkkA tgka dkVwZu Hkjs Fks ogkWa gesa etnwjh ugha nh Fkh] vgenkckn esa [kkyh dj gekyh dh etnwjh ns nsus dh ckr gq;h FkhA** This witness has also stated,- ^^;g Vªd fnYyh ls cacbZ tk jgh gks rks eqÖks irk ugha] gesa rks dgk Fkk fd vgenkckn [kkyh djus dks dgk FkkA gedks ml Vªd esa fcBk;k rks Fkk ;g lgh gS] ysfdu HkkMk r; dj ugha fcBk;k FkkA ge Hkh ml Vªd ls vgenkckn etnwjh djus tk jgs FksA** (16). It is apparent on the face of the record that the claimants assertion that the deceased along with persons was employed on the truck as a labourer was nothing but a humbug. Whether the deceased and other persons boarded the truck at Udaipur or at Dungarpur, the fact remains that he deceased did not board the truck Delhi and the fact further remains that the truck was not going to Delhi but was coming from Delhi and was going towards Ahmedabad and, as alleged by PW.2 Ganesh, they were to be paid wages at Ahmedabad and were taken on the truck by its driver and not by the owner. The claim averments are proved to be absolutely false. the deceased was not in the employment of the truck owner and this story was created only to avoid the consequences of the deceased being a gratuitous passenger in a goods vehicle and to divert the liability towards the insurer. (17). Fundamental falsehood of the claim averments is coupled with the fact that the particulars of the driver of the truck have always remained in obscurity. Moreover, both the owner and driver have chosen not to appear before the Tribunal and have been served by substituted mode in the present appeal also, and significantly the address of both the driver and owner has been stated as one and the same, and then the FIR relating to this incident was not even produced by the claimants. All the circumstances raise more and more doubts on the genuineness of claim averments about the deceased being a labourer in the employment of truck owner. (18). The learned Judge has proceeded with an entirely erroneous view of the matter and has even failed to consider the circumstances available on record and the stark contradictions in the case sought to be set up by the claimants and so also the inherent improbability of the suggested story. (19). The deceased was nothing else than a gratuitous passenger on a goods vehicle and the insurer having never been shown to have undertaken any liability in this regard, ought to have been exonerated. (20). Having examined the Cover Note Exhibit A/1, this Court is satisfied that the learned Judge of the Tribunal was entirely in error in assuming that the liability for the death or bodily injury to the victim was covered under the insurance policy. (20). Having examined the Cover Note Exhibit A/1, this Court is satisfied that the learned Judge of the Tribunal was entirely in error in assuming that the liability for the death or bodily injury to the victim was covered under the insurance policy. Learned counsel for the appellant has rightly relied upon the decisions of the Honble Supreme Court in National Insurance Co. Ltd. vs. Baljeet Kaur ( AIR 2004 SC 1340 ) and New India Assurance co. vs. Asha Rani ( AIR 2003 SC 607 ) = (2003(2) RLW SC 213), to contend that the insurer having not taken any such liability of a gratuitous passenger in the goods vehicle, the liability in the present case could not have been mulcted on the insurance company. The finding on issue No.3 is set aside and this issue is decided in favour of the appellant. (21). In view of the aforesaid, the impugned award in so far it relates to the liability of the insurer deserves to be modified. Learned counsel for the appellant submitted that the insurer is not liable to make any payment towards the award amount and, therefore, the claimant ought to recover the amount of compensation from the owner and driver of the vehicle only. Learned counsel referred to the decisions of Honble Supreme Court in National Insurance Co. Ltd. vs. Bommithi Subbayamma & Ors. (2005(2) TAC 1 (SC)) and New India Assurance Co. Ltd. vs. C.M. Jaya & Ors. ( AIR 2002 SC 651 ) = (RLW 2002 (2) SC 193). Learned counsel for the respondents-claimants, on the other hand, submitted that the claimants deserve not to be deprived of the amount of compensation and as per the course adopted in Baljeet Kaurs case (supra), the insurer be directed to make payment and then to recover the same from the owner. (22). In this case, the Tribunal has made an award of Rs.1,09,500/- with interest at the rate of 12% per annum and in default of payment within sixty days, at the rate of 15% per annum. However, any amount paid towards interim compensation has been ordered to be deducted wherefrom. Record of the case shows that an amount of Rs.25,000/- was deposited on 10.8.1993 by the insurer and further amount of Rs.25,000/- was deposited by the appellant while filing this appeal. However, any amount paid towards interim compensation has been ordered to be deducted wherefrom. Record of the case shows that an amount of Rs.25,000/- was deposited on 10.8.1993 by the insurer and further amount of Rs.25,000/- was deposited by the appellant while filing this appeal. This Court while admitting the appeal on 28.10.1996 took note of the submission that in all, the appellant had deposited Rs.50,000/- and ordered stay over execution of the remaining amount. (23). The facts and circumstances pertaining to this case have been noticed in detail hereinbefore and it is apparent that the learned Tribunal was seriously in error in saddling the appellant with liability of payment of compensation in this case. It is also apparent that the claimant-respondents came out with a totally false case so far the status of the deceased while travelling in the truck is concerned. After referring to the case of Asha Rani (supra) and so also the later decisions delivered following Asha Rani, the Honble Supreme in Bommithi Subhayammas case (supra) directed,– ``10. In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This appeal is allowed. We, however, make it clear that claimants- respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Vehicle Accidents Claims Tribunal from the owner of the vehicle. No costs. (24). This court is of opinion that in the facts and circumstances of this case, the claimants should recover the remaining award amount from the owner and driver of the vehicle only and there appears to be no justification for making a direction to the insurer to make payment of the remaining award amount. However, the appellant-insurer should also recover the amount already paid to the claimants from the owner of the vehicle instead of seeking any restitution from the claimants. (25). As a result of the aforesaid, this appeal is allowed, the impugned award dated 29.6.1996 is modified and while maintaining the quantum of compensation awarded by the Tribunal, it is held that in place of the insurer, the owner of the vehicle is liable to satisfy the award. The claimant-respondents may recover the remaining amount payable under the award from the owner and driver of the vehicle. The claimant-respondents may recover the remaining amount payable under the award from the owner and driver of the vehicle. The appellant-insurer shall be entitled to recover the amount already paid in this case from the owner of the vehicle. For the purpose of such recovery, the appellant shall not be required to file a separate suit and it may initiate proceedings in execution as if the dispute between the insurer and the owner has already been decided in favour of the insurer. The Tribunal having not passed any order regarding apportionate and investment of the award amount, it shall be required of the Tribunal to pass necessary orders in that regard in accordance with law as and when the remaining award amount is recovered or paid. There shall be no order as to costs of this appeals. _