JUDGMENT : (V.R.K. KRUPA SAGAR, J.) 1. This appeal under section 173 of the Motor Vehicles Act, 1988 is filed by the Oriental Insurance Company Limited impugning the order dated 05.11.2011 of the learned Chairman, Motor Accidents Claims Tribunal – Cum – III Additional District Judge, (FTC), Ongole in MVOP.No.591 of 2009. 2. Heard arguments of Sri Samboju Bala Gopal, the learned counsel for appellant/insurance company and no arguments were submitted on behalf of the respondents. 3. The following facts are required to be noticed: Sri Y. Venkatesh Reddy aged 22 years was in the employment as Hitachi vehicle helper. Sri K.Srinivasa Reddy is Hitachi vehicle operator. Lorry bearing registration No. AP KA 09 A 4666 was carrying this Hitachi on 15.03.2009 from Thirhahallii to Mysore and when it reached near Kudumallaige Village, there was rash or negligent driving on part of its driver and as a consequence accident occurred and Sri Venkatesh Reddy fell down and the Hitachi vehicle fell upon him causing his death. At the relevant time, the deceased was travelling by sitting with the Hitachi vehicle where as its operator Sri K. Srinivasa Reddy was sitting in the cabin of the lorry. The incident of accident was reported to police and Cr.No.42 of 2009 was registered at Maluru Police Station of Karnataka State. After due investigation, a charge sheet was laid before a competent court alleging the cause of accident was out of rash or negligent driving of the driver of the offending lorry. The parents of the deceased filed MVOP.No. 591 of 2009 before learned Chairman, Motor Accidents Claims Tribunal - Cum - Additional District Judge, Ongole showing the driver of the offending vehicle as R1 and the owner as R2 and the insurer as R3 and prayed for compensation of Rs.5,10,000/-. The owner and driver did not choose to appear and contest. The insurance company contested the matter and filed a counter and raised various contentions and sought dismissal of the claim. Learned claims tribunal settled the following issues for trial. 1. Whether the accident occurred due to rash and negligent driving of the driver of Lorry bearing No. KA 09 A- 4666, on 15-3-2009 evening at about 4-45 P.M., at Thirthahalli, Shimoga NH-13, in turning of Biluva Hugulahalli at Kudumallige, Thirthahalli Taluk, Karnataka State? 2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom? 3. Whether the accident occurred due to rash and negligent driving of the driver of Lorry bearing No. KA 09 A- 4666, on 15-3-2009 evening at about 4-45 P.M., at Thirthahalli, Shimoga NH-13, in turning of Biluva Hugulahalli at Kudumallige, Thirthahalli Taluk, Karnataka State? 2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom? 3. Whether the age and income of the deceased are correct? 4. To what relief? There was the evidence of PW. 1 and 2 and Exs.A1 to A16 for claimants. There was the evidence of RW.1 who was an officer of the insurance company through whom the insurance policy in Ex.B1 was exhibited. After hearing the learned counsel on both sides and after considering the evidence on record, the learned claims tribunal categorically held that the death in this road accident was out of rash or negligent driving by the driver/R1 therein. It found that the parents of the deceased were entitled to seek compensation. Before the tribunal the evidence was produced to show that the deceased was earning Rs.10,000/- per month. However, after narrating the facts and circumstances, the learned claims tribunal did not agree with that contention and recorded that deceased was earning Rs.6,000/- per month. After applying multiplier No.13, it assessed loss of dependency at Rs.4,68,000/-. It granted Rs.2,000/- towards funeral expenses, and Rs.5,000/- towards transportation charges and Rs.25,000/-towards loss of estate. Before the claims tribunal, the insurance company argued that the deceased was a gratuitous passenger and by sitting with the vehicle, he violated the policy terms. After recording various reasons, both the contentions were negatived by the claims tribunal. Eventually, it passed the award in the following terms. “In the result, this petition is allowed in part with proportionate costs awarding compensation of Rs.5 lacs to petitioners' payable by the respondents 1 to 3 with joint and several liability. Petition in respect of the rest of claim of petitioners, is dismissed without costs. Out of aforesaid compensation amount, petitioners 1 and 2 are entitled to at the ratio of 40:60 respectively. Petition in respect of the rest of claim of petitioners, is dismissed without costs. Out of aforesaid compensation amount, petitioners 1 and 2 are entitled to at the ratio of 40:60 respectively. Respondents 1 to 3 are directed to deposit the said compensation amount together with costs of the petition within 30 days from this date before this tribunal and in case of default, the petitioners are entitled to interest at the rate of 9% p.a., on the aforesaid compensation amount from this date till the date of deposit of the said amount. On deposit of said compensation amount by respondents, petitioners are entitled to withdraw a sum of Rs.1 lac each together with costs of the petition and the remaining compensation amount payable to petitioners and accrued interest, if any, shall be deposited in any Nationalised Bank, Ongole Branch for a period of three years.” 4. In the present appeal filed by the insurance company the said award is challenged on various grounds. Notices were served on respondents and appearance was made. However, despite availing several chances, no arguments were submitted on behalf of the respondents. In view of the grounds urged in the appeal and the submissions made by the learned counsel on behalf of the insurance company, the point that falls for consideration is. “ Whether the impugned award suffers from factual or legal errors requiring interference? Point: - 5. One of the grounds urged in this appeal is that that the learned claims tribunal awarded 7.5% interest per annum and it is on higher side and it ought to have limited the rate of interest to 6%. This contention is factually incorrect. In paragraph No.14 and at page No.6 of the impugned award, the learned claims tribunal recorded that the claimants did not pray for awarding any interest in their claim petition and therefore it declined to grant any interest on the amount claimed. We have already noticed the operative portion of the impugned award where one would find 9% interest per annum being granted. The said interest was granted conditionally. In other words, the direction in the award was for the deposit of claim amount within 30 days from the date of the award and in the event of failing to deposit within that time 9% interest was granted from the date of award till the date of deposit. The said interest was granted conditionally. In other words, the direction in the award was for the deposit of claim amount within 30 days from the date of the award and in the event of failing to deposit within that time 9% interest was granted from the date of award till the date of deposit. Therefore, the contention raised in the appeal with reference to interest is factually incorrect and is thus rejected. 6. Another contention raised in the appeal is that the claimants ought to have filed their claim petition under Workmen's Compensation Act as against the owner of the Hitachi vehicle and ought not to have filed the claim petition against the owner of the insured goods vehicle. This contention is legally not tenable. In this regard, one is required to notice the legislative mandate contained in section 167 of the Motor Vehicle Act, 1988. 167. Option regarding claims for compensation in certain cases .—Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923), where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. The provision clearly allows the claimants to make their claim either under the Workmen’s Compensation Act or under the Motor Vehicles Act, 1988 . Therefore, the claimants who are the parents of the deceased made a claim before the claims tribunal and the same was in accordance with the law. Therefore, the contrary contention raised in this appeal is negatived. 7. Another serious contention raised in this appeal is that the deceased was an unauthorized passenger travelling in a goods vehicle. On considering the material on record, it is found that at the material point of time, the offending lorry was insured and Ex.B1 insurance policy was effective on that day. At the time of accident, the operator of the Hitachi was in the cabin of the lorry and the helper of the Hitachi is with the vehicle. On considering the material on record, it is found that at the material point of time, the offending lorry was insured and Ex.B1 insurance policy was effective on that day. At the time of accident, the operator of the Hitachi was in the cabin of the lorry and the helper of the Hitachi is with the vehicle. The question was as to whether the helper could travel along with the Hitachi vehicle and in the event of any injury or death whether his claim or the claim of his legal representatives is covered by terms and conditions of the insurance policy. It was still within the competence of the contracting parties to insurance policy to pay necessary premium for those who travel in the goods vehicle for the purpose of loading and unloading or keeping the goods safe. To determine that the best method is to verify the terms and conditions of the insurance policy. Referring to this aspect of the matter at paragraph No.13 of the impugned award, the learned claims tribunal mentioned that the insurance company failed to file the terms and conditions of the policy and therefore it could not accept its contention that one of the terms and conditions stood violated. It is undisputed before this court that what was filed in the form of Ex.B1 does not contain the total terms and conditions agreed upon between the insurer and the insured. The insurance company was well within its competence to file the terms and conditions of the insurance policy before the claims tribunal. Its failure to do so should lead to adverse inference. Without production of terms and conditions, the insurance company could not say that the terms and conditions of the insurance policy were violated. 8. It was in such circumstances, the learned claims tribunal rightly concluded that the deceased was not a gratuitous passenger as seen from the material on record. The view is correct and no contrary view is possible. Therefore, the contention raised on behalf of the appellant/ Insurance company is negatived. 9. Another contention raised on behalf of the insurance company in this appeal is that the deceased sat on the top of the Hitachi vehicle which Hitachi vehicle was being carried by the offending lorry and it was his negligence that led to his death and therefore compensation could not have been awarded. 9. Another contention raised on behalf of the insurance company in this appeal is that the deceased sat on the top of the Hitachi vehicle which Hitachi vehicle was being carried by the offending lorry and it was his negligence that led to his death and therefore compensation could not have been awarded. Having considered this submission and having scrutinized the material on record, this court finds it difficult to agree with this contention of the learned counsel for appellant. The said Hitachi vehicle was being carried by the offending lorry. RW.1 was not an eye witness to the incident. According to PW.2 he was traveling in the cabin as he is a Hitachi operator. His evidence was only to the effect that the helper of the Hitachi vehicle/ deceased was in the body of the lorry which means he was there along with Hitachi vehicle. There was no evidence to think that the deceased was sitting on the top of the Hitachi vehicle. The facts can be viewed from a different angle also. The Hitachi vehicle fell down and the deceased also fell down from the body of the lorry. As per the evidence of PW.2 as well as the out come of the police investigation indicated that the said incident occurred only because of rash or negligent driving on part of the driver of the offending lorry. Thus, the direct cause of accident and the resultant death could be attributed only to the driver of the offending lorry. Even if it is assumed that the deceased was sitting on the top of the Hitachi which he would not be supposed to do, such conduct was not the cause of accident. The contention raised by the insurance company requires a court of law to think that had the deceased been more vigilant, he could not have died. That is a far-fetched way of looking at the facts. What precautions could have averted the victim from escaping the clutches of death was not the question that was to be considered. What was to be considered was what imbalanced the victim leading to his death. From the evidence, it is crystal clear that it was rash or negligent driving of the driver of the offending lorry that imbalanced the safe position of the victim. Therefore, this argument of the learned counsel for appellant is negatived. What was to be considered was what imbalanced the victim leading to his death. From the evidence, it is crystal clear that it was rash or negligent driving of the driver of the offending lorry that imbalanced the safe position of the victim. Therefore, this argument of the learned counsel for appellant is negatived. Another contention raised is about excess compensation that was being granted. Having considered the material on record one would notice that though the earnings of the deceased were stated to be Rs.10,000/- per month, the claims tribunal, based on evidence, correctly recorded that Rs.6,000/- per month was the monthly income. No material contrary to that was placed on record by the insurance company before the claims tribunal. Therefore, what was granted towards loss of dependency was in accordance with the principles and therefore no interference is required. Towards loss of estate, the claims tribunal granted Rs.25,000/-. In the celebrated ruling of the Hon’ble Supreme Court of India in National Insurance Company Limited V. Pranay Sethi , [ 2017 (16) SCC 680 ] a cap was fixed at Rs.15,000/- towards loss of estate. Thus, Rs.10,000/- was granted in excess of it which may require modification. On the other hand, claims tribunal granted Rs.2,000/- towards funeral expenses but the ruling in Pranay Sethi’s case permitted Rs.15,000/- towards funeral expenses. Thus, there was deficiency of Rs.13,000/- under this head. In such circumstances, this court is of the opinion that what was granted by the learned claims tribunal as a total sum of compensation in its final operative portion of the award does not require any modification. 10. Another submission of the learned counsel for the insurance company is that the claims tribunal ought to have permitted the insurance company to pay first and recover later. After seriously considering this submission, this court is unable to persuade itself to grant such relief. The impugned award rightly held that there was no violation of policy conditions. It was not the case of appellant/insurance company that the driver of the offending vehicle did not have valid and effective driving licence. It is in such circumstances, the doctrine of pay and recovery does not apply. The impugned award rightly held that there was no violation of policy conditions. It was not the case of appellant/insurance company that the driver of the offending vehicle did not have valid and effective driving licence. It is in such circumstances, the doctrine of pay and recovery does not apply. If in the opinion of the insurance company, the contracting party to the insurance policy, namely, the owner of the vehicle was in breach any of the conditions of the insurance policy it is well within its competence to sue him for recovery of money. Therefore, the prayer for application of pay and recovery cannot be granted in this case. 11. Having considered all the submissions of the learned counsel for appellant and on perusal of the record, this court finds that the award impugned is accurate on facts and law and requires no interference. There is no merit in this appeal. Point is answered against the appellant. 12. In the result, this appeal is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications, pending, if any, shall stand closed.