The 1st respondent was a member of the Musical troupe. On the allegation that while he was travelling in a goods auto rickshaw, in which his musical instruments were being carried, it overturned owing to the negligence of the 3rd respondent who was the driver of the vehicle, he filed the petition for compensation. The 2nd respondent was the owner and the appellant the insurer. The appellant contended that the 1st respondent was a gratuitous passenger and he is not covered by the insurance policy. So, the Tribunal found that the accident was due to the negligence of the 3rd respondent and the 1st respondent was travelling in the auto rickshaw as the owner of the goods carried in it and he is covered by the policy. The award is challenged by the insurer. 2. Heard.
3. It has come out in evidence that the 1st respondent was sharing the seat with the driver of the vehicle. The learned counsel for the appellant submits M.A.C.A. No.1596 of 2008 2 that sharing the seat with the driver is prohibited and the company is not liable to indemnify the insured.
4. In United India Insurance Co. Ltd. v.
Suresh K.K. and Another [AIR 2008 SC 2871] the Supreme Court held that sharing seat with a driver amounts to violation of the condition in the Policy. If it is a violation of the condition in the policy, the appellant is entitled to recover the amount from the owner, namely the 2nd respondent in this case.
5. In the result, this appeal is allowed in part.
The appellant is allowed to recover the compensation from the 2nd respondent after making the payment to the 1st respondent.
Sd/-
K. ABRAHAM MATHEW JUDGE NS