JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. A. Ganguly, learned counsel for the applicant as well as Mr. R. Goswami, learned counsel for the respondent No. 1. None appears on call for the respondent No. 2. 2. This appeal under section 173 of the Motor Vehicle Act is directed against the judgment and award dated 26.07.2010 passed by the learned Member, MACT, Sonitpur, Tezpur in MAC Case No. 74/2006. The appellant herein were minors on 23.02.2011 when this appeal was filed. In this appeal, the appellants are represented by one Dorji Khandu, next friend of the appellants. 3. The respondent No. 2, namely, Smt Sang Ere, who is the mother of the appellants had filed a claim petition under Section 163A of the Motor Vehicles Act, 1988 claiming compensation in respect of the death of her husband, namely, Late Norbu Tsering who was driving a commercial Tata truck bearing registration No. AR-04-1317. On 10.06.2005, while the ill-fated vehicle driven by the deceased was coming from Bomdila to Bhalukpong, on reaching 41 kms towards Bhalukpong, due to certain mechanical failure, the vehicle slipped and fell left side downhill from the road surface about 200 meters. As a result, the deceased as well as the handyman, namely, Pinku Chetri sustained grievous injuries and both of them later succumbed to their injuries on spot and the vehicle was completely damaged. The respondent No. 2/claimant had prayed for compensation of Rs. 1,00,00,000/- (Rupees One crore only). 4. On perusal of the records and as per the order sheet of the claim case, it is seen that on 27.03.2009, the respondent No. 2-claimant was cross-examined by the respondent No. 1 i.e. the Insurance Company and the claimant had filed petition No. 775/2009 to implead the name of the appellants herein aged about 9 and 3 years old respectively as the co-claimants. Accordingly, as the respondent No. 1 had not made any objection, the appellants were also impleaded as per order dated 27.03.2009 and the case was further fixed for cross-examination of CW-1. 5. Upon pleadings the following issues were framed for trial: 1. Whether the alleged accident took place due to rash and negligent driving by the driver of the vehicle No. AR-04/1317 (Tata truck)? 2. Whether there was contributory negligence on the part of the deceased leading to the accident in question? 3. 5. Upon pleadings the following issues were framed for trial: 1. Whether the alleged accident took place due to rash and negligent driving by the driver of the vehicle No. AR-04/1317 (Tata truck)? 2. Whether there was contributory negligence on the part of the deceased leading to the accident in question? 3. Whether the claimant is/are entitled to compensation as prayed for and if yes, from whom and to what extent? 6. The respondent No. 2 herein who was the claimant had examined herself in support of the claim petition. In respect of issues No. 1 and 2, the learned Tribunal had recorded that the CW-1 had admitted in her cross-examination that the vehicle was driven by her husband and he was not paid salary. It was also admitted that she had not submitted any document paper of Bhalukpong P.S. Case No. 16/2005 and that she also admitted that she had not submitted any birth certificate of her children who had been impleaded in the case. It was further recorded that the CW-1 had not submitted any written statement in MAC App. 73/2006. The said case was filed by the claimant in respect of Pinku Chetry, the handyman of the said vehicle. The learned Tribunal had further recorded that CW-1 had admitted that the name of her husband was written as N.T. Jamchana and she had claimed compensation for Norbu Tsering showing him as her husband. Accordingly, on the ground that the respondent No. 2 had neither examined any witness nor produced any MVI report or any technical inspection report and she had not seen the accident. In the absence of any proof of mechanical effect, the learned Tribunal found it difficult to hold that the death of the deceased driver was a result of the mechanical failure of the vehicle. Accordingly, issues No. 1 and 2 were decided, in favour of the respondent No. 2 and the appellants (i.e. claimants). 7. In respect of issue No. 3, the learned Tribunal held that the legal representative of the deceased had failed to establish by preponderance of evidence that there was no negligence on the part of the injured or deceased and that they were not responsible for the accident and the claim for compensation cannot be entertained. Accordingly, the learned Tribunal had held that the respondent No. 2 was not entitled to any compensation. 8. Accordingly, the learned Tribunal had held that the respondent No. 2 was not entitled to any compensation. 8. The learned counsel for the appellant has submitted that the learned Tribunal had only dealt with the case of the respondent No. 2 and although it had been mentioned in the impugned judgment that the appellants were also impleaded, the learned Tribunal had failed to appreciate the case from the perspective of the appellant and, as such, the learned Tribunal had misdirected itself in adjudicating the case of respondent No. 2 only. 9. The learned counsel for the appellants has further submitted that the same Tribunal by judgment and order dated 18.01.2010 in MAC case No. 73/2006 had held that no negligence was found at all on the part of the Tribunal and that Aizawl P.S. Case No. 699/93 dated 25.09.1993 under section 279/338/304A IPC ended in FR and accordingly, in that case the learned Tribunal had passed an award of Rs. 50,000/- with 9% interest from the date of filing of the claim petition till realization. However, in the present case in hand, the same Tribunal had dismissed the claim petition on the ground that the driver i.e. the deceased was negligent and on that ground the compensation was refused. 10. In this connection by relying on the case of United India Insurance Company Ltd. vs. Laljibhai Haninbhai and Others, (2008) ACJ 528, it is submitted that it was not open to the Tribunal to give different finding as regard negligence and accordingly, the issue was barred by res-judicata and accordingly, the learned Tribunal had erred in law in dismissing the claim petition. 11. It is further submitted by the learned counsel for the appellants that the appellants were the minor children of the deceased and therefore, they stand at a different footing than the respondent No. 2, who was the owner of the vehicle and therefore, as the deceased father of the appellants was holding an effective driving licence, he would fall within the meaning of "any person" and accordingly, would also be a "third party" and therefore, the appellant would be entitled to just, equitable and fair compensation. In this regard, the learned counsel for the appellant has placed reliance on the case of Branch Manager National Insurance Company Limited Gangtok vs. Master Surja Subba and Another, (2014) AIR (Sik) 7. 12. xxx xxx xxx 13. In this regard, the learned counsel for the appellant has placed reliance on the case of Branch Manager National Insurance Company Limited Gangtok vs. Master Surja Subba and Another, (2014) AIR (Sik) 7. 12. xxx xxx xxx 13. It is further submitted that in this case, the policy was not exhibited by the respondent No. 1 and therefore, it was not open for the Tribunal or for this Court to take cognizance of any clause contained therein, which may be against the interest of the appellants and therefore, the claim of the appellant should be held to be maintainable. In this regard the learned counsel for the appellant has placed reliance on the case of National Insurance Company Ltd. vs. Jugal Kishore and Others, 1988 AIR SC 179. 14. xxx xxx xxx 15. Per-Contra, the learned counsel for the respondent No. 1 has referred to the provisions of Section 147 of the M.V. Act, 1988 to project that under the said provisions it is, inter-alia, provided that the policy of insurance must be a policy which insures the person of class of persons specified in the policy. It is submitted that unless specifically inserted in the certificate of insurance, a normal insurance policy for a commercial truck/vehicle would either cover the owner-driver or paid driver. In this regard, it is submitted that for the purpose of determining whether the appellants are entitled to be compensated, this appellate court would be required to ascertain if the claim is in respect of the classes of persons who are covered by the insurance or whether the claim is in respect of a "third party" which is either caused or arising out of the use of the insured vehicle in a public place. 16. It is further submitted that in this case the appellants have claimed to be children of the deceased. It has been admitted by the CW-1 that the driver was the father of the appellants and also the husband of CW-1, who was the owner of the offending vehicle. Hence, the deceased driver, being not a paid driver was acting as an agent of the owner of the vehicle i.e. the respondent No. 2 herein who was the mother of the appellants. Hence, the deceased driver, being not a paid driver was acting as an agent of the owner of the vehicle i.e. the respondent No. 2 herein who was the mother of the appellants. Accordingly, it is submitted that for the purpose of determining the claim, the deceased driver of the offending vehicle cannot be treated to be a "third party" and therefore, the respondent No. 1 cannot be saddled with the liability of paying any compensation to the appellants. 17. Upon hearing the learned counsel for both sides, trial records of MAC No. 74/2006 has been perused. It is seen that during the cross-examination, the CW-1 has made certain statements which makes the stand of the CW-1 to be inconsistent. In her cross-examination, the CW-1 (respondent No. 2) has stated that the name of her husband is written as N.T. Jamchana and she has claimed compensation for Norbu Tsering showing him as her husband. Although she has stated that it is not a fact that N.T. Jamchana is not the same person, there is nothing on record to show that the husband of the respondent No. 2 i.e. Norbu Tsering and N.T. Jamchana is same and one person. In the evidence on affidavit the respondent No. 2 has claimed to be 24 years of age as on 22.09.2008, day on which the evidence on affidavit was sworn. During her cross-examination, the respondent No. 2 has submitted that at the time of accident i.e. on 10.06.2005, her age was 28 years. The implication of the said statements is that on 22.09.2008, the age of the respondent No. 2 ought to have been 31 years. It is seen from the petition No. 775/2009 filed on 27.03.2009 that the respondent No. 2 had prayed for impleading the name of her two children, namely, Tinzing Dorma, aged 9 years and Jimmy Wongdo, aged 3 years to be impleaded as co-claimants. Moreover, the photocopy of the insurance policy field by the respondent No. 2 shows that the said insurance was effective from 03.12.2014, and on that day the respondent No. 2 had declared herself to be wife of one N.T. Jamchana. But, on 27.03.2015, the appellant No. 1 was 9 years of age. Moreover, the photocopy of the insurance policy field by the respondent No. 2 shows that the said insurance was effective from 03.12.2014, and on that day the respondent No. 2 had declared herself to be wife of one N.T. Jamchana. But, on 27.03.2015, the appellant No. 1 was 9 years of age. Under such circumstances, it was the duty of the respondent No. 2 to establish how the appellants were entitled to be a co-claimant with her in the claim petition as the accident had occurred on 10.06.2005 and that the appellant No. 2 was 3 years as on 27.03.2009. In this regard, this Court hastens to clarify that nothing stated herein is intended to question the legal status of the appellants herein. This aspect has been gone into only for the purpose of determining whether any right to sue has devolved upon the appellants herein. This is of some significance because in the cross-examination, the CW-1 i.e. respondent No. 2 has admitted that she had not submitted the birth certificate of her children who are impleaded in the case. Moreover, the photocopy of the insurance policy filed by the respondent No. 2 shows entry to the effect that the respondent No. 2 was the wife of one N.T. Jamchana. 18. On perusal of the materials available on record, it is seen that the present appeal by the appellants has been instituted through one Dorjee Khandu claiming to be next friend of the appellants. In this regard although no objection has been taken by the respondent No. 1, but it is seen that there is no materials on record to show how the authority of the respondent No. 2 who was the mother and natural guardian of the appellants could have been ousted by the purported next friend of the appellants. There is also no material on record to demonstrate before this Court as to how the interest of the respondent No. 2 was in conflict with the interest of the appellants herein. 19. This appeal is not supported by any affidavit, but it contains only by a certificate in terms of provisions contained in Order XLI Rule 1 and 2 CPC. Thus, there is no statement on record to show that on what basis the next friend of the appellants herein had disputed the authority of the mother of appellants i.e. the respondent No. 2. Thus, there is no statement on record to show that on what basis the next friend of the appellants herein had disputed the authority of the mother of appellants i.e. the respondent No. 2. It is apparent that the next friend through whom the present appeal has been instituted is not a court appointed guardian. Admittedly there is no statement in the memo of appeal whereby the appellants have disputed or disowned the authority of their mother i.e. respondent No. 2 and apparently, there is no statement in this appeal as to how the said Dorjee Khandu was having the capacity to oust the authority of the mother and natural guardian and to present the appeal as a next friend. In the appeal no statement has been made by the next friend of the appellants to demonstrate how the appellants were the legal heir of the deceased person, namely, Norbu Tsering. 20. In order to appreciate as to whether the deceased could be treated to be a third party within the meaning of Section 147 of the M.V. Act, it would be relevant to re-produce the provisions of Section 147 of the M.V. Act herein-below:- "147 Requirements of policies and limits of liability: (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which:- (a) is issued by a person who is an authorised insurer. (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2):- (i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required:- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of or bodily injury to, any such employee:- (a) engaged in driving the vehicle. (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle. (c) if it is a goods carriage, being carried in the vehicle. (ii) to cover any contractual liability. Explanation - For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred. (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." 21. The CW-1 (respondent No. 2) has admitted in her cross-examination that the offending vehicle was driven by her husband and he was not paid any salary. The CW-1 has further admitted that she has not submitted any document of Bhalukpong PS Case No. 16/2005 which indicates that the final report if any in the said Bhalukpong PS Case No. 16/2005 has not been exhibited. The respondent No. 2 who was the claimant had filed list of documents along with the claim petition on 13.03.2006. The list of documents indicated that the following documents were filed (i) Form No. 54 duly signed by the O.C., Bhalukpong, (ii) police report dated 13.07.2005, and (iii) policy of insurance. In serial No. 4, it is mentioned that other documents which could not be traced out now shall be submitted at a later state. In the address of the respondent No. 2, it has been mentioned that the respondent No. 2 is the wife of N.T. Jamchana, Yeang, Dirang, district Jaintia Hills, Meghalaya. In serial No. 4, it is mentioned that other documents which could not be traced out now shall be submitted at a later state. In the address of the respondent No. 2, it has been mentioned that the respondent No. 2 is the wife of N.T. Jamchana, Yeang, Dirang, district Jaintia Hills, Meghalaya. Therefore, as per the own document filed by the respondent No. 2, she had not declared herself to be the wife of the deceased when the insurance policy commenced from 03.12.2004. There is nothing on record to show that the respondent No. 2 was the wife of the deceased except for her statement in the claim petition and in her evidence on affidavit, which is contrary to the document i.e. copy of insurance policy filed on record by her. 22. Under such circumstances, notwithstanding the reference to the case of Jugal Kishore (supra) in the present case in hand, the respondent No. 2 had filed a copy of insurance policy but did not prove the original. In view of the inconsistencies regarding the name of the husband of respondent No. 2 and whether the appellants are the legal heir of the deceased, this Court would invoke the provisions of Section 114 Illustration (g) of Evidence Act, 1872 to the effect that had the original of the insurance policy been produced, the said document would have gone against the respondent No. 2. Although the learned counsel for the appellant has submitted that in terms of the judgment rendered in the case of Jugal Kishore (supra), it was the duty of the insurance to prove the insurance policy, but it is seen that in the present case in hand, the appellants who are the co-claimants are also the children of respondent No. 2, who was the owner of the vehicle. In a given case, when a third party makes a claim, it is not expected that the third party, who is a victim of accident would be having a copy of insurance policy and therefore, under such circumstances, it has been held that if a contrary evidence is required to be given in respect of the terms and conditions of the insurance policy, the onus of proving the insurance policy is on the insurer. The same ratio cannot be extended to mean that even when the claimant is the owner of vehicle, still the insurer has to prove the insurance policy. There is no dispute at the bar that the offending vehicle was duly insured when the respondent No. 1 and that the insurance was valid at the time of accident. The respondent No. 1 has not disputed that the vehicle was having comprehensive package policy coverage at the time of the accident. Under such circumstances, it is seen that in the present case in hand, the insured vehicle was a commercial vehicle. The commercial vehicle was not authorized to carry passenger except person accompanying the goods who are treated to be non-gratuitous passenger, but having insurance coverage. Therefore, in the present case in hand, when the deceased father of the appellants was admittedly the driver of the vehicle involved in the accident, this Court is unable to treat the deceased father, who was another husband of respondent No. 2 to be an occupant of the car as was held in the case of Master Surja Subba (supra). In that case the vehicle involved in the accident was a family passenger car and the husband of the owner of the Maruti vehicle, being a victim was held to be occupant of the car and covered by the insurance policy. The said ratio would not apply in the present case in hand where the deceased was the driver of the commercial vehicle and he cannot be treated to be an occupant of the passenger car treated to be a third party. The provisions of Section 147 of the Motor Vehicles Act leave no room for doubt that the insurance policy would cover against any liability incurred in respect of death of injury to any person, including the owner of the goods carried in the vehicle or damage to any property of a third party caused by or arising out of the use of vehicle in a public place or in respect of death of bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in the public place which is spent out under the provisions of Section 147(1)(b) of the M.V. Act. 23. 23. Accordingly, notwithstanding the status of the appellants and without making any comment on their relationship with the deceased, as this Court is not inclined to hold that the deceased was a "third party" in relation to the vehicle (truck) involved in the accident, because by dint of his status of the husband of the owner of the vehicle, the deceased had stepped into the shoes of the owner and he would not be covered within the meaning of "third party" as referred to in Section 147 of the M.V. Act. Accordingly, the appellant is not found to be entitled to any relief in this appeal. 24. The learned counsel for the appellant has raised an issue that the finding in MAC 73/2006 is to the effect that there was no rash and negligent driving of the offending vehicle which is contrary to the finding recorded in MAC-74/2006 involving the same vehicle and accident, wherein it was held that the deceased was guilty of rash and negligent driving and it was submitted that the two different views was barred by principles of res-judicata and therefore, as the claim petition was dismissed on that ground alone that contradictory finding be interfered with. In this connection, this Court is of the opinion that as the claim petition was not maintainable on ground the deceased was not a "third party" in relation to the vehicle involved in the accident, the issue as regards two different findings in respect of the same accident and the said issue has not been gone into. Moreover, there is nothing on record to show that the decision renders in MAC No. 73/2006 was brought to the notice of the learned Tribunal. 25. In view of the finding and discussion above, although for different reasons, this Court is not inclined to interfere with the impugned judgment and award dated 26.07.2010 passed by the learned Member, MACT, Sonitpur, Tezpur in MAC Case No. 74/2006. 26. Accordingly, this appeal stands dismissed, leaving the parties to bear their own cost.