JUDGMENT Indira Shah, J. 1. The appellant in this appeal assails the correctness of the judgment and order dated 08.08.2012 passed by Motor Accident Claims Tribunal, Shillong in MAC Case No. [SH] 71/2004. The appellant filed the Claim petition claiming compensation of Rs. 48,96,000/- on account of death of her husband in a Motor Accident. The Case of the Claimant as set out in the claim petition was that on 17.10.2003 claimant's husband Klisar Rani boarded a bus bearing No. ML-05-C-8738 at Shillong to go to Nongspung Village. When the bus reached at Umshyrpi bridge on a sharp turn the bus took a turn at a high speed and Klisar Rani jerked out of the bus. He was immediately rushed to hospital where he succumbed to his injuries. The deceased was a Class-II Contractor and was doing regular construction works with PWD & Irrigation Department and Public Health Engineering, Government of Meghalaya. He was also a progressive fanner and businessman. His monthly income was 32,000/-. The vehicle was owned by O.P. No. 1, and was driven by O.P. No. 4. It was insured with M/S. Oriental Insurance Company Ltd. 2. The O.P. No. 1, Insurer of the Vehicle contested the claim inter-alia on the ground that the accident in question had not taken place on account of alleged rash and negligent driving of the bus. According to O.P. No. 1, the deceased was traveling on the roof top of the bus. The deceased without permission of the driver or the conductor and without their notice climbed on the roof of the bus and died due to his own negligence for which the insurer cannot be held liable. The age and income of the deceased were also disputed. The owner and driver of the vehicle did not contest the claim and therefore the proceeding preceded ex-parte against them. 3. Upon the pleading the learned Tribunal settled the following issues:- 1. Whether this claim petition is maintainable? 2. Whether the accident occurred due to the rash and negligent driving of the driver of Bus No. ML-05-C-8738? 3. Whether the cause of the death of the deceased as a result of the said accident is due to his own fault? 4.Whether the opposite parties are liable for compensation? 5. Whether the Claimant is entitled to compensation? If so, to what extent? 4. The claimant examined herself and adduced evidence of 3 more witnesses. 3. Whether the cause of the death of the deceased as a result of the said accident is due to his own fault? 4.Whether the opposite parties are liable for compensation? 5. Whether the Claimant is entitled to compensation? If so, to what extent? 4. The claimant examined herself and adduced evidence of 3 more witnesses. Two witnesses i.e. the investigating Police Officer and the investigator appointed by the Insurer were examined on behalf of O.P. No. 1. 5. The learned Tribunal on conclusion of Trial dismissed the claim petition relying on the evidence adduced by the O.Ps. Witnesses. 6. Heard Mr. S. Sen, learned counsel for the appellant and Mr. B.K. Deb Roy, learned counsel appearing on behalf of the respondent-insurer. 7. The claimant did not see the accident. CW-2 Klitron Rani and CW-3 Kroll Karain deposed that they were traveling in the same bus. CW-2 is the brother of the deceased. CW-2 stated that he was sitting on front side seat of the bus while the deceased was sitting on back seat of the bus. The bus started at around 02.30 pm and was moving nonstop at a reasonable speed till it reached the place of accident where the deceased jerked out from the bus. He admitted that he did not see how the deceased fell down from the bus. He heard shouting and then he saw his brother (deceased) lying on the roadside. CW-3 Kroll Karain was also traveling with the deceased in the same bus. He was sitting on a seat in front side of the bus and the deceased was sitting at back portion in the bus, he stated. He further stated that the deceased was sitting by the side of rear door of the bus. In his cross-examination he admitted that he did not see how the deceased fell down from the bus. 8. CW-4 Swanding Kharsain was headman of the locality where the deceased was residing. Evidence of CW-4 & CW-6 Sken Warjri is hearsay as they were informed that the deceased died due of Motor Accident. 9. CW-5 E. Nongsiej was also traveling in the bus along with the deceased, CW-2 and CW-3. He deposed that deceased was sitting on the back seat of the bus. The bus started from Anjalee point and it was running at a high speed non-stop till it reached the place of accident. 9. CW-5 E. Nongsiej was also traveling in the bus along with the deceased, CW-2 and CW-3. He deposed that deceased was sitting on the back seat of the bus. The bus started from Anjalee point and it was running at a high speed non-stop till it reached the place of accident. However, he also did not notice how the deceased fell down. 10. CW-2, CW-3 and CW-5 denied the suggestion put to them that the deceased fell down from the roof of the bus. 11. O.P.W. 1, S.I. Bobby Marak was at Lumdiengjri Traffic Branch, Shillong. On receipt of verbal information an UD Case was registered, he deposed. He stated that no regular case was registered against the driver of the bus as it was revealed from investigation of U.D. case that the deceased was hanging on the back carrier without knowledge of the driver, handyman and conductor of the vehicle. He stated that the Headman Swanding Kharsain (CW-4) and Klitron Rani, brother of the deceased (CW-2) told him that the deceased was hanging behind the bus when the accident occurred. 12. OPW-2, H. Lyndoh was appointed by the insurer to investigate the case and accordingly after investigation he submitted his report. He deposed that during investigation he met the wife and brother-in-law of the deceased and came to know that the deceased fell down from the roof top of the running bus. 13. The evidence of O.P.W. 1 and O.P.W. 2 is contradictory in as much as O.P.W. 1 stated that the deceased was hanging with back carrier of the bus whereas according to O.P.W. 2, the deceased was on the rooftop of the bus wherefrom he fell down Moreover, the O.P.W. 1 or O.P.W. 2 did not witness the accident. The driver, conductor or handymen of the bus were not examined by either by O.P. The driver, conductor or handyman were also not examined as witnesses by the insurer. 14. From the aforesaid evidence it is apparent that the deceased died in the Motor accident and the accident had taken place because of use of the bus in question. It is also not disputed that the vehicle was insured with the contesting respondent. 15. In the case of Bimla Devi & other Vs. 14. From the aforesaid evidence it is apparent that the deceased died in the Motor accident and the accident had taken place because of use of the bus in question. It is also not disputed that the vehicle was insured with the contesting respondent. 15. In the case of Bimla Devi & other Vs. Himachal Road Transport Corporation & other (2009) 13 SCC 530 cited by the learned counsel for the appellant, the Apex Court observed that strict proof of an accident caused by a particular bus in particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. In para-11 of the judgment it was observed as under:- 11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis-a-vis the averments made in a claim petition. 16. Normally, it is for the claimant to proof negligence and not for the insurer/owner to disprove it. But there is exception as in some cases considerable hardship is cause to the claimant as the true cause of accident may not be known to him/her. He/She can prove the accident but cannot prove how it happened to establish negligence on the part of driver of the vehicle. This hardship is sought to be avoided by applying the principle of 'res ipsa loquitur' i.e. 'thing speaks for itself'. This legal maxim is a rule of presumptive evidence. In this case the doctrine of 'res ipsa loquitur' also applies. The bus started from Anjali Point, Shillong and moved non-stop till the accident occurred. This hardship is sought to be avoided by applying the principle of 'res ipsa loquitur' i.e. 'thing speaks for itself'. This legal maxim is a rule of presumptive evidence. In this case the doctrine of 'res ipsa loquitur' also applies. The bus started from Anjali Point, Shillong and moved non-stop till the accident occurred. The deceased boarded the bus from the starting point. Even, if it is accepted that the deceased was on the rooftop of the bus it can be presumed that he was allowed to travel on the roof of the bus. That being, so the driver of the bus was expected to take care so that the person who was on rooftop may not fall down or meet with any accident. However, there is positive evidence of C.W. 2, 3 and 6 that the deceased was traveling inside the bus. He occupied a seat near the rear door of the bus. He fell down from the bus while the bus was moving. Although C.W. 2, 3, and 6 did not see how he fell down from the bus. The fact remains that the deceased was ejected from inside the bus. The bald statement of investigators cannot be accepted for want of corroboration from the driver, conductor or handyman or any co-passengers. Furthermore, the evidence of investigators i.e. O.P.W. 1 and O.P.W. 2 are inconsistent as discussed earlier. 17. In a similar case of Giriraj Prasad Agarwal & other Vs. Parwati Devi & other 2005 ACJ (Jhar) 1626 the deceased was traveling on rooftop of the bus and the Insurance Company disowned its liability on the ground of violation of permit by carrying more passengers. The High Court relying on the judgments of the Apex Court in British India Genl. Ins-Co. Ltd. Vs. Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan, 1987 ACJ 411 (SC); National Insurance Co. Ltd. Vs. United India Insurance Co. Ltd. Vs. Nicollelta Rohtagi, 2002 ACJ 1950 (SC); United India Insurance Co.-Ltd. Vs. Dodda Paian, 2001 ACJ 1418 (Karnataka) held:- The insurer can avoid its liability only if the conditions specified in Section 149(2) are satisfied, and not otherwise. The statute recognizes no other condition for an insurer to escape its liability except those given in Section 149(2) whatever the terms and conditions between the insurer and insured may be. Dodda Paian, 2001 ACJ 1418 (Karnataka) held:- The insurer can avoid its liability only if the conditions specified in Section 149(2) are satisfied, and not otherwise. The statute recognizes no other condition for an insurer to escape its liability except those given in Section 149(2) whatever the terms and conditions between the insurer and insured may be. The terms of contract between the insured and insurer determining their rights and liabilities towards each other are not and should not be confused with the statutory liability of the insurer for the third party risk. If mere is a breach of contract on the part of the insured, the insurer may proceed against the insured. As far as third party risk is concerned, the liability being statutory, it cannot be overridden by terms of the contract of insurance between the parties. 18. The probabilities and improbabilities which were considered by the Tribunal for persuading itself into reaching the conclusion that the deceased was traveling on rooftop were not unwarranted in face of the witnesses examined by the claimant. There is no reason to disbelieve the direct evidence of such witnesses. This Court, therefore, has no hesitation to hold that the deceased was in the bus and he was traveling as a passenger. The fact of his death due to the accident is however, an admitted fact. 19. For the foregoing reasons, the judgment passed by the Tribunal is liable to be set aside. The appeal is allowed. To determine the quantum of compensation the case is remitted back to tribunal with direction to ascertain the amount which the claimant is entitled to get giving opportunity of hearing to both the parties. It is further directed that the tribunal shall dispose of the case within two months with effect from receipt of LCR along with copy of this judgment. Both the parties are accordingly directed to appear before the tribunal within 7 (seven) days w.e.f. today. Send back the LCR to Lower Court along with a copy of this judgment. Appeal allowed.