JUDGMENT 1. The appellant has challenged judgment and award passed by MACT, (Auxi.), Panchmahals at Godhra in MACP No.1883 of 2000 Exh.34 decided on 30th June, 2009. The Claims Tribunal has awarded Rs.4,15,000/- with 8% interest in favour of respondents-claimants. 2. Learned advocate Mr.K.K.Nair appearing on behalf of appellant-insurance company raised number of contentions before this Court challenging award in question. He submitted that deceased was travelling on roof of tempo when admittedly vehicle is goods vehicle. The FIR filed by cleaner of tempo not asked deceased to sit on roof of tempo, deliberately deceased was travelling on roof of tempo. 2.1 Learned advocate Mr.K.K.Nair has relied upon decision of Apex Court in case of National Insurance Co. Ltd. Vs. Cholleti Bharatamma and others reported in 2007(12) Scale 560 . He submitted that owner of goods means only the person who travels in the cabin of the vehicle. Therefore he submitted that admittedly deceased was travelling on roof of tempo, therefore, insurance company is not liable to pay compensation. He also emphasise that it was case of a contributory negligence of deceased for travelling on roof of tempo without asked by cleaner or driver of tempo. He relied upon decision of Division Bench of Karnataka High Court in the case of Smt.Mayamma Vs. Siddaiah and others reported in 2003(2) Transport and Accident Cases 410 (Kant.). Relying upon this decision, he submitted that, if deceased was travelling on roof of bus in breach of law then it amounts to some part of contributory negligence of deceased. He also submitted that deceased was died when tempo was moving but that fact was nobody is aware about the death of deceased. He relied upon FIR filed by Sikander Abbasbhai Belim, cleaner of tempo. While relying upon this FIR, he submitted that, it was not asked by cleaner or driver to decease to travel on roof of tempo. No such facts have been narrated by cleaner in FIR dated 24th June, 2000. He submitted that the decision which have been relied upon by claimant is of a Single Judge judgment against which decision of Division Bench of Karnataka High Court must have to be relied by this Court. No such facts have been narrated by cleaner in FIR dated 24th June, 2000. He submitted that the decision which have been relied upon by claimant is of a Single Judge judgment against which decision of Division Bench of Karnataka High Court must have to be relied by this Court. He also submitted that owner of vehicle insured has committed breach of condition of insurance policy using the tempo being a goods vehicle for hiring passengers which contributed the death of deceased, therefore insurance company is not liable to pay any compensation. He also submitted that, in spite of having sufficient space available to sit inside the tempo, deceased was voluntarily seated on roof of tempo that considered to be a case of clear negligence of deceased who can avoid such accident and therefore that there is sole negligence on the part of deceased or alternatively he suggested 50% negligence. Exh.26 FIR and Exh.27 panchnama also placed on record by learned advocate Mr.Nair. Except that no other submission is made by learned advocate Mr.Nair before this Court challenging award in question. 3. I have considered the submissions made by learned advocate Mr.K.K.Nair and I have also perused award passed by Claims Tribunal, Godhra. 4. The brief facts of present appeal are as under: 4.1 That on dated 24th June, 2000, deceased had gone to Kothamba to purchase wheat grass from the market. After purchasing the same, deceased had hired a Tempo No.GJ-17-X-5021 to transport the wheat grass and he was also travelling in the said tempo along with his goods. The driver and cleaner of the said vehicle had asked deceased to put his goods on roof of the vehicle and had also asked him to sit near his goods to look after the same. The said vehicle was driven by opponent No.1 in very rash and negligent manner with excessive speed. When the said vehicle had reached to village at the place of occurrence, one branch of Mahuda tree was looming low on the road. Due to careless driving and high speed, opponent No.1 had not noticed the branch of Mahuda tree and deceased was hit by this branch of Mahuda tree on his head and he sustained injury on his head. He struggled for his life for a while and died on the spot. Accordingly accident was occurred due to rash and negligent driving of opponent No.1. He struggled for his life for a while and died on the spot. Accordingly accident was occurred due to rash and negligent driving of opponent No.1. 4.2 The deceased was aged 35 years at the time of accident. He was working as a skilled labourer for centering in the construction work and earning Rs.3,500/- per month. The claimants are dependants of deceased. Total claim made by the claimants Rs.6,20,000/-. After receiving summons from the Claims Tribunal, the respondents No.1 and 2 appeared through learned advocate Mr.A.A.Jujara but did not file written statement. Therefore facts stated in claim petition remain unchallenged by opponents No.1 and 2. On behalf of opponent No.3 insurance company, learned advocate Mr.D.P.Mehta has filed written statement vide Exh.14 denying the averments made in claim petition. After aforesaid pleadings, issues have been framed by Claims Tribunal as referred in para 5. 4.3 On behalf of claimants one Gangaben was examined at Exh.25 and certain documents are produced on record. Exh.26 is the copy of complaint. Exh.27 copy of panchnama. Exh.28 copy of panchnama of tempo. Exh.29 copy of inquest panchnama. Exh.30 copy of P.M.Note. Exh.31 copy of insurance policy. Thereafter the evidence of claimants was closed by Exh.33 purshis. The claimant has not examined any other witness and respondent No.3 insurance company had also not examined any witnesses on their behalf and not produced any documentary evidence before Claims Tribunal. 4.4 The issue No.1 has been decided by Claims Tribunal considering evidence of Gangaben where deceased was travelling on tempo along with his goods and driver and cleaner had asked deceased to put his goods on roof of the tempo and also asked him to sit near his goods to look after the same. The said vehicle was driven by opponent No.1 in a very rash and negligent manner with excessive speed and due to careless driving and high speed opponent No.1 had not noticed the branch of Mahuda tree and deceased was hit by this branch of Mahuda tree on his head and he sustained injury on his head. deceased struggled for his life for a while and died on the spot, and therefore, according to claimant's evidence Exh.25 the accident is occurred due to rash and negligent driving of opponent No.1 driver. deceased struggled for his life for a while and died on the spot, and therefore, according to claimant's evidence Exh.25 the accident is occurred due to rash and negligent driving of opponent No.1 driver. The Claims Tribunal has considered FIR, Panchnama, P.M.Note and come to the conclusion that facts stated by claimants Exh.25 and the averments made in claim petition and documentary evidence produced by claimants are totally remain unchallenged by opponents No.1 and 2 driver and owner of vehicle. The claimant was cross-examined by insurance company advocate where she stated that she has no personal knowledge about the accident. The Claims Tribunal has come to conclusion that there is no reason to disbelieve the fact of application, affidavit as well as documentary evidence produced by claimants. Therefore, considering entire evidence on record against which no reply filed by driver and owner of the vehicle and no evidence is produced by driver and owner of vehicle before the Claims Tribunal, therefore facts stated by claimants remain unchallenged and therefore Claims Tribunal come to conclusion that the accident occurred due to rash and negligent driving of opponent No.1 and due to that deceased had expired. So accordingly issue no.1 negligence has been decided by Claims Tribunal and therefore quantum of compensation has been examined by Claims Tribunal. deceased was doing masonry work and earning Rs.3,500/- per month, but, in absence of documents for proving income, Claims Tribunal has assessed income of deceased Rs.2,000/-per month. Then future prospective income comes to Rs.3,000/-, so yearly income comes to Rs.36,000/-, and considering age of deceased 30 years as per P.M.Note (Exh.30), 16 multiplier had been applied and therefore Rs.10,000/- for loss of expectation of life, Rs.10,000/- for loss of consortium and Rs.5,000/- for transportation and Rs.6,000/-for funeral expenses. In all it comes to Rs.4,50,000/-. 4.5 The claimants have relied upon the decision of Punjab and Haryana High Court in case of Vijay Singh vs. Haryana Roadways and another reported in 1990 ACJ 18 and also relied upon another decision in case of Inja Venkatrao vs. Sundara Barik and another reported in 1991 ACJ 581 and also judgment of High Court of Ranchi in case of Giriraj Prasad Agrawal Vs. Parwati Devi, Kall Paharin reported in 2005(O) AIJ-JH 900815. Parwati Devi, Kall Paharin reported in 2005(O) AIJ-JH 900815. 4.6 In view of aforesaid decisions which relied upon by advocate of claimants, Claims Tribunal has come to conclusion that when a person travelling on the roof of vehicle and sustained injuries, the driver of vehicle is responsible and decided in aforesaid decisions which relied by claimants. 4.7 On behalf of appellant insurance company submission was made that when a person travelling on the roof of vehicle, in that case, it is a negligence of passenger or a person who was travelling on the roof of vehicle. The decision of Division Bench of Karnataka High Court in the case of Smt.Mayamma Vs. Siddaiah and others reported in 2003(2) Transport and Accident Cases 410 (Kant.) has been relied and submission was that at the most at least 50% contributory negligence must have to be decided by Tribunal against deceased. 4.8 The Claims Tribunal has considered aforesaid decision of Division Bench of Karnataka High Court and come to the conclusion that facts referred to in the aforesaid decision of Karnataka High Court are not applicable to the facts of present case because in the present case opponents have not proved any negligence on the part of deceased. Therefore aforesaid decision is not applicable. Ultimately Claims Tribunal comes to conclusion that the respondents No.2 and 3 are jointly and severally liable for the above compensation with 8% interest. 5. The contention raised by learned advocate Mr.K.K.Nair, relying upon FIR and panchnama that deceased was voluntarily seated on roof of tempo. At this stage, it is necessary to note that averments made in claim petition that the driver and cleaner both were asked to deceased to put up three bundles/bags of wheat grass at the roof of tempo and to sit nearby for taking care of such goods. Therefore it was asked by cleaner and driver to deceased to sit on the roof of tempo nearby three bags of wheat grass so deceased can take care of such goods. Against which there is no written statement filed by cleaner and driver though advocate was engaged by them, no oral evidence was given by driver and cleaner before Claims Tribunal as a rebuttal evidence from their side. Against which there is no written statement filed by cleaner and driver though advocate was engaged by them, no oral evidence was given by driver and cleaner before Claims Tribunal as a rebuttal evidence from their side. Therefore, in absence of that Claims Tribunal has rightly believed the averments made in claim petition supported with affidavit of claimant Exh.25 and other documents FIR, panchnama which remain unchallenged by opponents No.1 and 2. Therefore contention raised by learned advocate Mr.Nair cannot be accepted in absence of evidence from opponents No.1 and 2 at the time when accident occurred opponent No.1 was driving vehicle in a very rash and negligent manner with excessive speed, and that is how one branch of Mahuda Tree was looming low on the road heavily dashed to the head of deceased and because of high speed impact on the head of deceased which resulted death of deceased immediately. If vehicle was in slow motion, having reasonable speed then the impact of one branch of Mahuda Tee was looming low on the road may not having effect of fatal caused death of deceased. Therefore it proves rash and negligent driving of opponent No.1 and FIR Exh.26 is also lodged against opponent No.1. The opponent No.1 has not stepped into witness-box before Claims Tribunal to explain the accident. Even cleaner was also not examined who was complainant while lodging FIR against opponent No.1. Therefore contention raised by learned advocate Mr.Nair that it was a contributory negligence or sole negligence of deceased to travel on the roof of tempo with wheat grass cannot be accepted, because it was asked by driver and cleaner to deceased to put up his three bags of wheat grass on the roof of tempo and to sit nearby his goods to look after the same. So opponent No.1 driver and cleaner both were aware about facts that deceased was travelling on the roof of tempo so they have to take necessary care at the time of driving tempo so that deceased who was travelling in the tempo may not be put in adverse position or it may not occurred any fatal accident and therefore that care has not been taken by driver of tempo. On the contrary, tempo driven by driver in a very rash and negligent manner having excessive speed which gave a heavy blow of one branch of Mahuda tree on the head of deceased and that is how deceased was died. Therefore contention raised by learned advocate Mr.Nair about contributory negligence of deceased cannot be accepted and therefore decision of Cholleti Bharatamma and others (supra) is not applicable to the facts of present case. 6. Learned advocate Mr.Nair raised the contention that it was deliberately deceased was travelling on the roof of tempo cannot be accepted, and in cabin of tempo there was no space available and therefore driver and cleaner asked deceased to sit on the roof of tempo and therefore question of contributory negligence of deceased does not arise. Therefore contention raised by learned advocate Mr.Nair cannot be accepted. However, contention raised by learned advocate Mr.Nair that owner of vehicle has used the goods vehicle on hire basis and therefore it amounts to breach of condition of policy, but for that statutory risk covered under Sub-sec (1) of Section 147 that in goods vehicle if owner of goods was travelled then it considered to be a third party for that a statutory liability of insurance company for payment of compensation to the claimants. Therefore decision which relied by Mr.Nair is not applicable to the facts of this case. On the contrary, decision which have been relied by claimants before the Claims Tribunal where it is held that if passenger travelling on the roof of a bus sustained injuries, it cannot be considered to be a contributory negligence on the part of passenger who sustained injuries on account of negligent driving of bus driver, even though it may not be permissible in law for him to sit there. The relevant head note of reported decision in the case of Vijay Singh vs. Haryana Roadways and another reported in 1990 ACJ 18 which reads as under: “Negligence - Contributory negligence Passenger Travelling on the roof of a bus A passenger travelling on the roof of a bus sustained injuries when he was entangled with overhead electric wires Whether travelling on the roof of a bus per se constitutes contributory negligence on the part of the passenger who sustains injury on account of negligent driving of the bus driver Held: no; even though it may not be permissible in law for him to sit there. Negligence Driver Duty of care Passenger travelling on roof of the bus was entangled with overhead electric wires, fell down and sustained injuries Overhead wires were clearly visible to the driver Whether a driver owes a duty of care to passenger travelling on the roof and breach of this duty constitutes negligence Held: yes; breach of any rule or instruction prohibiting travel on the roof of a bus cannot be construed as a licence to the bus driver to drive the bus without due regard to the care and safety of all passengers including those on the roof. 6.1 In case of decision of Orissa High Court in case of Inja Venkatrao vs. Sundara Barik and another reported in 1991 ACJ 581 which is having an identical facts that passenger travelling on the roof top of a bus was hit by a branch of a tree and sustained fatal injury, whether passenger was guilty of contributory negligence, it is held that No. The conductor and driver allowed passengers to travel on the roof top and driver is solely negligent for accident. The relevant paragraphs 7, 8, 9 and 14 are quoted as under: “7. There is no dispute that deceased had fatal injuries. PW 1, who lodged information shortly after, narrated such injury has been sustained while deceased was moving on the top of the bus along with others as his head dashed against a branch of a tree. Certified copy of the first information report has been filed by the owner. Tribunal is, therefore, justified in findingthat deceased sustained fatal injury on account of his head being dashed against branch of a tree when he was travellingon the top of the bus. 8. Mr. Certified copy of the first information report has been filed by the owner. Tribunal is, therefore, justified in findingthat deceased sustained fatal injury on account of his head being dashed against branch of a tree when he was travellingon the top of the bus. 8. Mr. Routray submitted that driver cannot be held to be negligent when deceased was moving on the top of the bus. It is true that passengers are not to travel on roof of the bus. When the driver found passengers on the roof of the bus, he ought not to have driven the vehicle until passengers got down. In such circumstances, driver was negligent in driving the bus which resulted in the fatal injuries to deceased. 9. Moving on the roof top of the bus is stated to be a contributory negligence. When conductor and driver allowed persons to take their seats on roof top of the bus taking into consideration status of deceased, I am not inclined to hold that he had contributory negligence on that account. On account of negligence of the driver, owner is vicariously liable to pay the compensation. 14. I am not able to appreciate the contention of Mr.Das. Since insurance is admitted, insurer is liable in the minimum to pay compensation of Rs.15,000/-even if there is no negligence of the driver. A person travelling as passenger on the roof top of the bus comes within the meaning of passenger in the bus. In case of passenger in the bus insurer is liable to the extent of Rs.15,000/- also. In any case, insurer is liable to the extent of Rs.15,000/- only. When owner appeared, he could have produced the policy to make insurer liable for more amount. As the policy has not been produced by the owner and no explanation has been offered why the same was not produced, liability of the insurer cannot be more than Rs.15,000/- in the circumstances of this case.” 7. The decision which have been relied by learned advocate Mr.Nair, the decision of Division Bench of Karnataka High Court where also it has been held that deceased travelling in over-crowded bus by sitting on roof of bus with others. The bus while passing beneath over-hanging telephone cable, deceased wrenched off and thrown away from moving bus sustaining fatal injuries. The decision which have been relied by learned advocate Mr.Nair, the decision of Division Bench of Karnataka High Court where also it has been held that deceased travelling in over-crowded bus by sitting on roof of bus with others. The bus while passing beneath over-hanging telephone cable, deceased wrenched off and thrown away from moving bus sustaining fatal injuries. The Claims Tribunal has rejected claim petition because of considering 100% negligence was on the part of deceased who was travelling on top of bus in breach of law. The Division Bench of Karnataka High Court has reversed this finding and held that staff of bus permitted passengers to travel on top of bus in disregard of law then duty was cast on driver to ensure that due care and caution was taken to avoid any injury or death of passengers. Therefore the driver of bus held equally negligent. 8. Recently Division Bench of Karnataka High Court in case of New India Assurance Company, Bangalore vs. Jayashree alias Laxmi and others reported in AIR 2009 (NOC) 2243 (Kar.) where following head-note are quoted as under: “Liability of insurer - Passenger - Defined under Rules - Passenger travelling on roof of offending bus - No attempt made by driver or person incharge of vehicle to stop passengers from travelling on roof - Violation of R.123 invites penal action - Accident occurred on account of use of offending public service bus - Deceased being passenger under S.147 of said Act and covered under insurance policy - insurer liable to pay compensation.” 9. Recently, Jammu and Kashmir High Court at Srinagar has examined question by contributory negligence in case of labourer sitting on tool box of the truck sustained fatal injuries when the truck met with accident due to rash and negligent driving. Therefore, question as to whether the deceased contributed to the accident and to his death merely because he was sitting on the tool box, the answer is given by High Court `No'; driver alone was negligent who allowed the labourer to sit on the tool box, in case of National Insurance Co. Ltd., Vs. Zainab and others reported in 2009 ACJ 2485. The relevant discussion is made by Jammu and Kashmir High Court in paras 6 to 9 which are quoted as under: “6. Ltd., Vs. Zainab and others reported in 2009 ACJ 2485. The relevant discussion is made by Jammu and Kashmir High Court in paras 6 to 9 which are quoted as under: “6. The question is whether it is negligence of the driver of the offending vehicle or of the deceased labourer? It is the driver who has to drive the vehicle; it is he who has to take all precautions. It was the duty of the driver not to allow the labourer to sit on tool box. It cannot be said that it was mistake or negligence of labourer. He was not an expert; expert is driver. If a passenger sits on roof of the bus, it is the duty of the driver not to allow the passengers to sit on roof and if the accident occurs that would be negligence of the driver. 7. The party who presses into service contributory negligence, has to plead and prove the same. There is not an iota of evidence led by the insurer to that effect. Punjab and Haryana High Court has also held in a case titled Vijay Singh v. Haryana Roadways, 1990 ACJ 18 (P&H), that travelling on roof of bus does not per se constitute contributory negligence. It is apt to reproduce paras 6 and 7 of the said judgment herein: (6) There is a duty of care that rests upon the driver of a bus towards all persons travelling on it whichcovers not only those in it, but extends also to passengers travelling on the roof of it, even though it may not have been permissible in law for them to be there. Breach of any rule or instruction prohibiting travel on the roof of a bus cannot be construed as a licence to the bus driver to drive the bus without due regard to the care and safety of all passengers including those on the rooftop. Rather, when there are passengers on the roof, extra caution is imperative. These observations are, of course, not to be taken as approving or permitting travel on the roof of a bus. It is clearly incumbent upon the authorities concerned to ensure that travel on the roof of a bus is not only banned, but does not in fact take place as a risk of serious injury is so obviously inherent in such travel. It is clearly incumbent upon the authorities concerned to ensure that travel on the roof of a bus is not only banned, but does not in fact take place as a risk of serious injury is so obviously inherent in such travel. (7) Seen in this light, no contributory negligence can be fastened upon a passenger travelling on the roof of the bus and who sustains injuries on account of the negligent driving of the bus driver, merely on the ground that he had been travelling on the roof of the bus and not inside it. In this view of the matter, the finding of contributory negligence recorded against the claimant cannot be sustained and is thus set aside.” 8. The same view has again been taken by the High Court of Punjab and Haryana in a case titled Manjit Kaur v. Pepsu Road Trans. Corpn., 1990 ACJ 471 (P&H). 9. This Court has also taken the same view in case titled Dheeraj Singh v. Hajra, 2006 ACJ 2250 (J&K).” 10. The decision relied upon by learned advocate Mr.Nair in the case of Smt.Mayamma Vs. Siddaiah and others reported in 2003(2) Transport and Accident Cases 410 (Kant.) is also not helpful to appellant. Therefore the contentions which are raised by learned advocate Mr.Nair challenging the award in question cannot be accepted by this Court simply on the ground that the opponents No.1 and 2 remained silent, after engaging the advocate no written statements have been filed disputing the claim and no oral evidence led by them and appellant - insurance company also not led any oral evidence and also not produced any documentary evidence. In such circumstances, the Claims Tribunal has rightly considered the FIR and Panchnama, and on that basis decided negligence of opponent No.1, and therefore, there was no question of any contributory negligence on the part of deceased because the driver and cleaner both were asked to deceased to travel on roof of tempo with his goods so he can look after the same. Against that no rebuttal evidence was produced by appellant - insurance company or opponents No.1 and 2. Therefore the Claims Tribunal while coming to the conclusion that accident was occurred due to rash and negligent driving of opponent No.1 cannot be considered to be an erroneous and learned advocate Mr.Nair has not challenged quantum of compensation before this Court. Against that no rebuttal evidence was produced by appellant - insurance company or opponents No.1 and 2. Therefore the Claims Tribunal while coming to the conclusion that accident was occurred due to rash and negligent driving of opponent No.1 cannot be considered to be an erroneous and learned advocate Mr.Nair has not challenged quantum of compensation before this Court. Learned advocate Mr.Nair has also not raised any contention to the fact that at the time of accident deceased was travelling in goods vehicle as an owner of goods. Accordingly, the Claims Tribunal has awarded reasonable, just and proper compensation in favour of claimants against which no submission is made by learned advocate Mr.Nair, and therefore, according to my opinion, the Claims Tribunal has not committed any error which requires interference by this Court. Therefore, there is no substance in first appeal. Accordingly the First Appeal is dismissed. 11. As the main appeal is dismissed, no order is required to be passed in civil application. The civil application stands also dismissed. 12. Before parting with judgment, this Court having an impression that attitude of Insurance Company to file an appeal before higher forum challenging a reasonable and reasoned award passed by claims tribunal knowing fully well that they are liable as per insurance policy. In this case, deceased was travelling in tempo as an owner of goods. This fact is not in dispute. Therefore, present appeal is preferred by insurance company on the ground that deceased should have to travel in cabin of driver ignoring the facts of FIR and evidence of claimant and another eye-witnesses. Therefore, just to file an appeal against every award passed by Claims Tribunal which found to be normally a reasonable and reasoned award, such attitude of filing an appeal before higher forum has been critised by Apex Court in case of Oriental Insurance Company Limited Vs. Ozma Shipping Company and Another reported in (2009) 9 SCC 159 . The relevant para 18 and 19 are relevant, therefore, the same are quoted as under: 18. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on the credibility and trustworthiness of the insurance companies. 19. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on the credibility and trustworthiness of the insurance companies. 19. Incidentally by adopting an honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability. The tendency of approaching the Apex Court in every such case also needs to be effectively curbed.”