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.) and 3rd Fast Track Court, Sabarkantha at Himatnagar in MAC Petition No.580 of 2001 and other cognate petitions 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 29th December 2000 at about 5 PM the claimants were travelling in the ill-fated Fiat Car bearing No.GJ.1.HA 1600 on Ambaji Highway and when the said car reached near Sainath Setvan, due to rash and negligent driving on the part of the Driver, said Fiat car dashed with a tree. In the said accident the passengers received serious injuries. Therefore, the claim petitions were filed by the claimants.
3 The Tribunal considering the documentary as well as oral evidence produced on record partly allowed the claim petitions. Hence, the present appeals are filed by the insurance company against the same.
4 Learned counsel for the insurance company has contended that the Fiat car 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. 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.
7 In the result, 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 Top