JUDGMENT : The appellant-Insurance Company filed this appeal assailing the judgment and award passed by the Addl. Senior Civil Judge and Addl. MACT, Gokak (hereinafter referred to as ‘the Tribunal’, for short) in MVC No.2217/2009 dated 16.11.2012. 2. Heard the arguments of learned counsel for both the parties. 3. The ranks of the parties before the Tribunal is retained for brevity. 4. The claimants filed a petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.8,00,000/-, inter alia contending that on 07.06.1991, son of the claimants, namely Yellappa Mallappa Belliveri, was traveling in a truck bearing registration No.MEI 4042 from Godachi towards Kamaldinni village, claiming to be a cleaner in the said truck and when the vehicle was moving near Kesarakoppa village at about 3.00 pm, the said Yellappa Mallappa Belliveri got down from the truck to answer nature call. When he attempted to board the truck, the driver of the truck all of a sudden moved the vehicle without any caution in a rash and negligent manner, due to which he fell down and sustained injuries. He succumbed to the injuries while shifting to the hospital. Previously, the claimants filed the petition under Workmen’s Compensation Act before the Labour Officer and Commissioner for Workmen’s Compensation (hereinafter referred to as the ‘the Commissioner’, for short), claiming that deceased was a cleaner of the said vehicle. The Commissioner passed the award dated 05.06.2004 by awarding the compensation of Rs.99,008/- to the claimants in WCA.SR.36/2002 with interest at 12% p.a. Assailing the award passed by the Commissioner, the Insurer preferred an appeal in MFA No.5921/2004, which came to be allowed and the award passed by the Commissioner has been set aside on the ground that the deceased was not a cleaner, but he was a passenger of the lorry, however, liberty was granted to the claimants to approach appropriate forum for seeking any relief under any other law, vide judgment dated 24.08.2007. Subsequently, the claimant filed the petition under Section 166 of the Motor Vehicles Act, claiming compensation. The respondent No.1-owner of the vehicle died during the pendency of the petition and his LRs were brought on record and the LRs of the respondent-owner admitted the previous proceedings and the judgment arrived by this Court in Misc. Appeal and denied the averments made in the claim petition as false. The respondent No.1-owner of the vehicle died during the pendency of the petition and his LRs were brought on record and the LRs of the respondent-owner admitted the previous proceedings and the judgment arrived by this Court in Misc. Appeal and denied the averments made in the claim petition as false. He has also taken a contention that the deceased was not a cleaner of the truck. However, the vehicle was duly insured with the 2nd respondent – Insurance Company and the liability, if any, shall be fastened on the Insurer. Hence he prayed for dismissing the claim petition. 2nd respondent-Insurer filed the statement of objection by denying the averments made in the claim petition as false and contended that this Court already declared that the deceased was not the cleaner of the truck and even if he is presumed to be a passenger in the lorry, he is an unauthorized passenger and the petition filed after 19 years which is barred by limitation and the petition is not maintainable. However, the Insurer also taken a contention that the driver of the lorry did not have a valid and effective driving licence at the time of accident and there is violation of the conditions of Insurance Policy by the insured. Therefore they are not liable to pay the compensation. Hence he prayed for dismissing the claim petition. Based upon the rival pleadings, the Tribunal framed the following issues: (i). Whether the petitioners prove that Shri. Yallappa Mallappa Belliveri was traveling in truck bearing No.MEI 4042 on 7.6.1991 at 3.00 pm on Katakol Chandaragi road within the limits of Kesarakoppa village? (ii). Whether the petitioners prove that the driver of the offending truck was driving the offending truck in rash and negligent manner and caused the alleged accident at the alleged time and place of accident? (iii). Whether the petitioners prove that Sri. Yallappa Mallappa Belliveri dies in the alleged accident? (iv). If the issues No.1 to 3 are held in the affirmative, from whom the petitioners are entitled to compensation? (v). What would be the just compensation? (vi). Whether the respondent No.2 proves the estopped alleged in para 12 of its written statement? (vii). Whether the petition is time barred? (viii). What award or order? (iv). If the issues No.1 to 3 are held in the affirmative, from whom the petitioners are entitled to compensation? (v). What would be the just compensation? (vi). Whether the respondent No.2 proves the estopped alleged in para 12 of its written statement? (vii). Whether the petition is time barred? (viii). What award or order? In support of their case, the claimants examined themselves as PW1 and PW2 and got marked seven documents as per Exs.P1 to P7 and the Insurer got examined their official as RW1 and the Insurance Policy was marked as Ex.R1. After considering the evidence on record, the Tribunal answered issues No.1 to 3 in the affirmative and awarded a compensation of Rs.2,62,720/- together with interest at 6% p.a., by fastening the liability on the owner and the Insurer of the vehicle jointly and severally. Assailing the judgment and award passed by the Tribunal, the Insurer again knocked the doors of this Court for the second time, by filing this appeal. 5. Learned counsel for the Insurer Sri. Ravindra R. Mane, strenuously contended that, previously the claimants not succeeded before this Court as they claimed the deceased as a workman-cleaner under the 1st respondent. This Court clearly held he was not the cleaner of the vehicle and he was a passenger in the lorry. The finding of this Court attained finality. Therefore, if once the deceased was held as a passenger in the goods vehicle, the respondent No.1 violated the terms and conditions of the policy and if an unauthorized passenger is permitted by the driver or owner of the vehicle in the goods vehicle, the liability cannot be fastened on the Insurance Company. In support of his case, he has relied upon the judgment of the Hon’ble Apex Court in the case of New India Assurance Co. Ltd., Vs. Asha Rani and Others reported in 2003 ACJ 1 and also relied upon the judgment in the case of Oriental Insurance Co. Ltd., Vs. Devireddy Konda Reddy and Ors. etc., reported in I (2003) ACC 214 (SC) and prayed for dismissing the claim petition by allowing the appeal. 6. Ltd., Vs. Asha Rani and Others reported in 2003 ACJ 1 and also relied upon the judgment in the case of Oriental Insurance Co. Ltd., Vs. Devireddy Konda Reddy and Ors. etc., reported in I (2003) ACC 214 (SC) and prayed for dismissing the claim petition by allowing the appeal. 6. Per contra, learned counsel for the respondents/claimants supporting the judgment and award passed by the Tribunal contended that, though this Court set aside the award passed by the Commissioner, but the claimants have established that the deceased had traveled in the lorry as a passenger and subsequently he got down and while trying to board the vehicle, the vehicle moved and caused the accident. Therefore, the deceased shall be treated as the third party in the accident, but not as either passenger or a cleaner of the vehicle. Therefore, the question of challenging the liability of the Insurer does not arise. In support of his arguments, learned counsel relied upon the judgment of the Division Bench of this Court in the case of Oriental General Insurance Co. Vs. Rukmini Bai reported in ILR 1992 KAR 2189 and in the case of National Insurance Co. Ltd., Vs. Ningamma & Others reported in ILR 1996 KAR 2213. He further contended that, even if this Court come to the conclusion that the deceased was a gratuitous passenger in the goods vehicle, the Insurance Company shall satisfy the award in the first instance and shall recover the same from the owner of the vehicle. In support of his arguments, the learned counsel relied upon the judgment of the Hon’ble Supreme Court in the case of Shivawwa and Another Vs. Branch Manager, National India Insurance Company Limited and Another reported in (2018) 5 SCC 762 and also the judgment of this Court in the case of New India Assurance Co. Ltd., Vs. R. Thippeswamy and others reported in 2007 ACJ 1761 and prayed for dismissing the appeal. 7. Having heard the arguments of the learned counsel for both the parties, the points that arise for my consideration are: (i). Whether the Tribunal is not justified in fastening the liability on the Insurance Company, which call for interference? (ii). Whether the compensation awarded by the Tribunal requires reduction? 8. 7. Having heard the arguments of the learned counsel for both the parties, the points that arise for my consideration are: (i). Whether the Tribunal is not justified in fastening the liability on the Insurance Company, which call for interference? (ii). Whether the compensation awarded by the Tribunal requires reduction? 8. The claimants though previously have stated before the Commissioner that the deceased was a cleaner of the truck, who sustained injuries and died in the accident while getting inside the truck after attending the nature call, on the earlier occasion, this Court in its judgment in MFA No.5921/2004 dated 24.08.2007, clearly held in paragraph 6 of the judgment that the deceased was not working as a cleaner in the lorry, but was traveling in the lorry as a passenger at the time of accident along with other persons. The said finding has attained finality. Therefore, the question of again taking the contention that the deceased was a cleaner cannot be acceptable. This Court already held that the deceased was a passenger in the vehicle. Admittedly, the vehicle was a truck and the persons traveling in the truck are deemed to be gratuitous passengers. Admittedly, as on the date of the accident, the deceased along with so many people boarded the lorry as gratuitous passenger. Therefore, as per the judgment of the Hon’ble Apex Court in Asha Rani’s case (supra), if a gratuitous passenger has traveled in the goods vehicle, the liability cannot be fastened on the Insurance Company. However, here in this case, as per the evidence and complaint filed by the uncle of the deceased, namely Hanumanth, it is categorically stated that, while they are all traveling in the lorry, when the lorry was stopped by the side of the road, the deceased Yellappa got down for attending the nature call and when he was attempting to board the lorry to get inside the cabin, the driver of the lorry moved the vehicle, due to which the lorry ran over him, he sustained injuries and died on the way to the hospital. In this regard, the learned counsel for the respondents/claimants has categorically contended that the deceased was a passenger in the lorry, but he has got down from the lorry and while trying to get inside the lorry, he met with an accident and died and therefore, he cannot be treated as a passenger and he shall be treated as a third party. He further contended that, once the passenger got down from the bus and not entered into the bus, the question of treating him as a passenger does not arise and on the other hand, he can be treated as a gratuitous passenger in the goods vehicle and therefore, fastening the liability on the Insurance Company cannot be interfered with. In support of his contention, the learned counsel relied upon the judgment of the Division Bench of this Court reported in Oriental General Insurance Co. Vs. Rukmini Bai reported in ILR 1992 KAR 2189, wherein at para 9 this Court held as under: “9. …………………. If really the claimant has already alighted from the bus and thereafter the accident had occurred, the contention urged by them would have been unexceptionable. But the pleadings and the evidence in the case establishes that when the claimant was in the process of alighting from the bus, on account of the bus having been moved by the driver, she fell down and was hit by the mudguard of the bus, and thereby she sustained injuries. In view of the Explanation below Section 95(1) a person in the process of alighting from a passenger vehicle, is a passenger and, therefore, in the present case, it is not possible to hold that the claimant had ceased to be a passenger and had become a third party………..” 9. In this case, the Division Bench of this Court held, if a passenger not alighted from the vehicle, under the process of alighting, he shall be considered as a passenger. Based upon the judgment of this Court the Coordinate Bench of this Court in National Insurance Co. Ltd., Vs. Ningamma & Others reported in ILR 1996 KAR 2213 held that the accident had occurred prior to boarding the bus and therefore, the injured or the deceased person cannot be construed as passenger. Another decision of the Coordinate Bench of this Court in the case of New India Assurance Co. Ltd., Vs. Ltd., Vs. Ningamma & Others reported in ILR 1996 KAR 2213 held that the accident had occurred prior to boarding the bus and therefore, the injured or the deceased person cannot be construed as passenger. Another decision of the Coordinate Bench of this Court in the case of New India Assurance Co. Ltd., Vs. R. Thippeswamy and others reported in 2007 ACJ 1761 , which is pertaining to the Workmen’s Compensation Act, is not applicable to the case on hand, since this Court also held that the deceased was not a cleaner/workman. However, Division Bench of this Court in another judgment in the case of New India Assurance Co. Ltd., Vs. Muniyamma and Others reported in 2010 ACJ 2686, held in para 16 as under: “16. The ‘third party’ is a person who is obviously not within the vehicle either as a driver or as an employee traveling in the vehicle or even as a passenger and in any way connected to the vehicle and in that connection traveling in the vehicle and so permitted by the provisions of the Act.” 10. Keeping in view the principles laid down by the Coordinate Bench as well as the Division Bench of this Court, coming to the facts of the case on hand, though the deceased Yellappa along with other passengers had traveled in the truck as a gratuitous passenger, but the fact remains that the deceased got down for attending the nature call and before entering into the vehicle, he was knocked down and sustained injuries and died. Therefore, the deceased was literally outside the vehicle and not in the vehicle. Therefore the deceased cannot be considered as a passenger nevertheless the gratuitous passenger in the goods vehicle, but he was a third party to the accident as prior to boarding the vehicle he was knocked down and sustained injuries. 11. Though the respondent’s counsel relied upon the judgement in the case of Shivawwa and Another Vs. Branch Manager, National India Insurance Company Limited and Another reported in (2018) 5 SCC 762 , wherein the Hon’ble Apex Court held that, in respect of third party insurance, the Insurance Company shall satisfy the award and then shall recover even when the gratuitous passenger had traveled in the said vehicle. Branch Manager, National India Insurance Company Limited and Another reported in (2018) 5 SCC 762 , wherein the Hon’ble Apex Court held that, in respect of third party insurance, the Insurance Company shall satisfy the award and then shall recover even when the gratuitous passenger had traveled in the said vehicle. In view of my findings that the deceased was not at all a passenger of the truck and he was a third party, the above judgment does not come to the aid in the case on hand. 12. Therefore, in the facts and circumstances of the case, I hold that the deceased cannot be considered as a gratuitous passenger in a goods vehicle in order to absolve the liability of the Insurer. On the other hand, the deceased being a third party to the contract and the Insurance Policy also covered the third party risk, the Insurance Company is liable to pay the compensation. The Tribunal has rightly fastened the liability on the Insurance Company and hence the findings of the Tribunal do not call for any interference. Hence, answer point No.(i) in favour of the claimants and as against the Insurance Company. 13. As regards the quantum of compensation, the counsel for the Insurer contended that the accident in question had occurred in the year 1991. The Tribunal has considered the income of the deceased, who was working as a coolie, as Rs.60/- per day and as the deceased was a bachelor deducted 50% towards personal expenses and by adding 30% towards future prospects, awarded compensation of Rs.2,52,720/- by applying the multiplier of 18. Further the Tribunal awarded Rs.5,000/-towards loss of estate and Rs.5,000/- towards funeral expenses, totally awarded compensation of Rs.2,62,720/- to the claimants. Even as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 SCC 680 , 40% of the income shall be added towards future prospects. Though the counsel for the appellant contended that, in the year 2004, normally Lok Adalath used to take minimum wages of Rs.1,000/- per month, but in view of the long pending proceedings from the year 2004 till 2019, considering the income of Rs.1,800/- per month by the Tribunal does not call for interference by this Court at this stage. Though the counsel for the appellant contended that, in the year 2004, normally Lok Adalath used to take minimum wages of Rs.1,000/- per month, but in view of the long pending proceedings from the year 2004 till 2019, considering the income of Rs.1,800/- per month by the Tribunal does not call for interference by this Court at this stage. Therefore, the award passed by the Tribunal need not be interfered on the quantum of compensation, as it is only a meager amount for the 19 years old person. Therefore, the appeal filed by the Insurer is devoid of merit and deserves to be dismissed. Accordingly the appeal is dismissed. The amount in deposit, if any, is ordered to be transmitted to the Tribunal along with the LCR forthwith.