JUDGMENT : 1. Heard the parties. 2. Though notice has been validly served upon the owner of the vehicle being respondent no.5 and the driver of the vehicle being respondent no.6 but neither of them turns up in-spite of repeated calls. Hence this appeal is heard ex-parte in respect of respondent nos.5 and 6. 3. This appeal is directed against the judgment and award dated 27.02.2012 passed by the Principal District Judge-cum-Motor Vehicle Accident Claim Tribunal, Seraikella by which the learned Tribunal in an application for compensation under Section 166 of the Motor Vehicle Act, 1988 has directed the insurance company to pay the compensation amount of Rs.2,73,500/- with interest at the rate of 6% per annum from the date of filing of the claim petition that is since 01.06.2007 till the date of realization. 4. The brief facts of the case is that on 07.11.2006 while the deceased Md. Sekh Ishaque @ Md. Asar was travelling on the roof of the bus after paying the fair to the conductor of the bus with the assurance of the conductor to provide a seat to the deceased after sometime inside the bus, the bus being driven in rash and negligent manner on application of sudden brake, there was a jerk by which the said Md. Sekh Ishaque @ Md. Asar swanged out from the roof of the bus and sustained injuries and succumbed to the injuries at MGM hospital during the course of his treatment. The appellant-opposite party no.1-insurance company pleaded before the Tribunal that the story of collecting fare by the conductor of the bus from the deceased is not proper. Hence, it was submitted before the Tribunal that the insurance company ought not to be saddled with the liability to pay the compensation amount if any, to be awarded. 5. The learned Tribunal after considering the rival pleadings framed the following seven issues :- (i) Whether the claimants have any cause of action or right to sue and the case is maintainable? (ii) Whether the accident took place due to rash and negligent driving by the driver of the vehicle bus no. JH 01E 5777? (iii) Whether the deceased died due to motor vehicle accident? (iv) Whether the owner has violated the terms and condition of the policy for which the vehicle has been insured under the insurer? (ii) Whether the accident took place due to rash and negligent driving by the driver of the vehicle bus no. JH 01E 5777? (iii) Whether the deceased died due to motor vehicle accident? (iv) Whether the owner has violated the terms and condition of the policy for which the vehicle has been insured under the insurer? (v) Whether the claimant is entitled to receive the compensation amount and if so, what should be the quantum of compensation? (vi) Whether the insurer of the vehicle is liable to indemnify the insured (owner) of the vehicle? (vii) Whether the claimant is entitled to get any relief or reliefs as claimed by them? 6. The learned Tribunal took up issue nos. i, ii and iii together and after considering the evidence in the record, came to a conclusion that the deceased died due to motor accident and decided the issue nos. i, ii and iii in favour of the claimants. In respect of issue no. iv, the Tribunal decided the issue no. iv in favour of the claimants and against the opposite party no.1-Insurance company. In respect of issue nos. v, vi and vii, taken up together by the tribunal, the Tribunal quantified the said compensation to be paid as mentioned above and passed the said impugned order. 7. Mr. D.C. Ghose, learned counsel for the appellant-insurance company relied upon the order of Hon’ble Supreme Court of India in the case of Branch Manager, National Ins. Co. Ltd. vs. Giriraj Prasad Agrawal & Ors. in Civil Appeal No.2421 of 2008 dated 16.01.2014 wherein the Hon’ble Supreme Court of India consequent upon the failure of the owner of the vehicle-respondent no.1 in that case to appear in-spite of notice, in the facts of that case, without going into the other aspects and leaving the question of law to be decided in appropriate case directed the appellant-Insurance Company to recover the award amount from the respondent no.1-insured. Mr. Ghose, next relied upon the judgment of Division Bench of this court in the case of National Insurance Company Ltd. vs. Most. Budhani Kisku & Anr. reported in 2008 (1) JCR 366 , paragraph nos.9 and 10 of which reads as under :- “9. The next question that falls for consideration is as to whether the claimants are entitled to compensation so awarded by the Court below. Budhani Kisku & Anr. reported in 2008 (1) JCR 366 , paragraph nos.9 and 10 of which reads as under :- “9. The next question that falls for consideration is as to whether the claimants are entitled to compensation so awarded by the Court below. It was the specific case of the claimants that the deceased, at the time of accident, was guarding the luggage of the passengers on the roof of the Bus. In our opinion, even if the deceased was a khalasi, he was not supposed to sit on the roof of the Bus in order to guard the luggage of the passengers. The evidence of the claimants that the deceased was on the top roof of the Bus is order to guard the luggage of the passengers, cannot be believed for the reason that he was also sitting on the roof of the Bus when the accident took place.. It is, therefore, a case of contributory negligence. The claimants-respondents are, therefore not entitled to the amount of compensation so awarded by the Court below. The amount of compensation is to be reduced from Rs. 3 lacs to Rs. 2 lacs. 10. As noticed above, admittedly the deceased was sitting on the roof of the Bus, which was not only in violation of the statutory provisions of the Act but also in violation of the policy conditions. In that view of the matter, the Insurance Company cannot be held liable for payment of entire compensation amount. We, therefore, hold that the owner of the vehicle is liable to pay compensation amount to the claimants. However, in the facts and circumstances of the case we direct the appellant-Insurance Company to pay compensation amount which is reduced from Rs. 3 lacs to Rs. 2 lacs and recover the same from the owner of the vehicle.” And submits that it has been held by the Division Bench of this Court that sitting on the roof of the bus was not only in violation of the statutory provisions of the Act but also violation of the policy conditions. It is next submitted by Mr. Ghose that the facts of National Insurance Co. Ltd. vs. Anjana Shyam & Ors. It is next submitted by Mr. Ghose that the facts of National Insurance Co. Ltd. vs. Anjana Shyam & Ors. reported in (2007) 7 SCC 445 are entirely different from the facts of this case as in that case, the bus was carrying passenger in excess of 42 passenger in respect of which premium for insurance was paid but that was not a case where the passenger were travelling on the roof which is the admitted facts in this case. Hence, it is submitted by Mr. Ghose that as there is failure of the policy condition, hence, the Insurance company be given right to recover the awarded compensation amount after paying the same to the claimants from the owner of the vehicle being the respondent no.5 of this appeal. 9. Mr. Atanu Banerjee, learned counsel for the respondents submits that since this appeal did not affect the right of the respondent nos.1 to 4-claimants to get the compensation amount. So, the respondent-claimants has no grievance if the appellant-Insurance company is first directed to pay the awarded compensation with interest to the claimants and thereafter to recover the same from the owner of the offending vehicle. 10. Having heard the rival submissions made at the Bar and after going through the materials in the record, the only point for determination that cropped up in this appeal is :- (I) Whether the Insurance Company be given the right to recover the compensation amount after paying the same to the claimants from the owner of the vehicle? 11. As has been held by the Division Bench of this Court in the case of National Insurance Company Ltd. vs. Most. Budhani Kisku & Anr. (supra), no doubt the travelling of the passenger on the roof of the bus is inter alia a violation of the terms and conditions of the insurance policy so, this Court is of the considered view that the learned Tribunal erred by not giving a categorical finding of the issue no. iv and accordingly, the finding of the issue no. (supra), no doubt the travelling of the passenger on the roof of the bus is inter alia a violation of the terms and conditions of the insurance policy so, this Court is of the considered view that the learned Tribunal erred by not giving a categorical finding of the issue no. iv and accordingly, the finding of the issue no. iv is set aside and the same is answered in the affirmative and as it is the admitted case of the claimants that the deceased was travelling on the roof of the bus at the time of accident, so it is a fit case where the appellant-Insurance Company be given the right to recover the compensation amount after paying the same to the claimants from the insurance company by way of execution of the award and judgment. The sole point for determination is answered accordingly. 12. In view of the discussions made above, the impugned judgment and award is modified to the extent that the appellant-Insurance Company is given the right to recover the compensation amount along with interest there on after paying the entire sum to the claimants; from the owner of the vehicle being the respondent no.5 of this appeal. 13. In the result, this appeal is disposed of with the aforesaid modification of the award. 14. Parties are to bear their own costs. 15. The Registrar General of this Court is directed to remit the statutory amount of Rs.25,000/- if any, deposited by the Insurance Company in connection with this appeal to the concerned Tribunal by appropriate mode forthwith. 16. Let a copy of this Judgment along with the Lower Court Records be send back to the learned Tribunal forthwith.