By way of filing these appeals under Section 173 of the Motor Vehicles Act, 1988 the appellant – insurance company has challenged the judgments and awards passed by the learned MAC Tribunal (Aux.), Navsari at Ahwa in MAC Petition No145 of 2007 and 185 of 2008 dated 13th July 2009 and 12th August 2009 vide which the Tribunal has partially allowed the claim petitions filed by the claimants. 2 The facts leading to filing the present appeals are to the effect that on the date of the incident viz. on 10th May 2007 the claimants were travelling in the ill-fated jeep bearing No.GJ.15.BB 119 for going to Ahwa. It is the case of the claimants that when the said Jeep reached the place of the accident, due to rash and negligent driving of the Driver of the said Jeep, the same turned turtle in which the claimant of MAC Petition No.185 of 2008 received serious injuries while another co passenger – Sitarambhai died. Therefore, heirs and legal representatives of Sitarambhai filed Claim Petition No.145 of 2007.
3 The Tribunal considering the documentary as well as oral evidence produced on record awarded Rs.56,500 to the injured and Rs.3,16,500 to the heirs of deceased Sitarambhai. Hence, the present appeals are filed by the insurance company against the same.
4 Learned counsel for the insurance company has contended that the Jeep was a private car and was registered for private use. Therefore, the injured as well as the deceased were illegal passengers in the private jeep car and the risk of the fare-paying passengers travelling in a private vehicle is not covered by the policy.
5. From the evidence led before the Tribunal at Exhibit 23 wherein widow of deceased, Shantaben has stated that jeep was running as a taxi and was carrying the fare paying passengers in the said area. One another injured passenger Janubhai Devsinghbhai Barde, in his deposition at Exhibit 27 has specifically admitted that he has paid Rs.15 as fare to the Driver of the Jeep and he was travelling as a fare paying passenger. In the case of Bhagyalakshmi and others v. United Insurance Company Limited & Another, (2009) 7 SCC 148 the Honourable Apex Court has held that for breach of package policy the insurance company is not liable to pay the compensation.
6. The Tribunal has failed to consider that there is a clear breach of the Policy and the vehicle which was registered as a private vehicle was used for carrying the passengers for hire and reward. In light of the aforesaid discussion, the impugned judgment and orders passed by the Tribunal cannot be sustained. The same are hereby set aside and quashed. No liability can be fastened on the appellant insurance company. The appeals of the appellant are allowed to this extent. However, it is clarified that if any amount has already been paid by the Insurance Company, it shall not be permissible for it to recover the same from the claimants. It is also clarified that if the claimants are entitled to recover the balance amount of the compensation awarded to them, they can recover the same from the estate of the owner.
(K.S.Jhaveri, J.) *mohd