( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 293 OF 2010 WITH CIVIL APPLICATION NO. 11912 OF 2009 The Branch Manager, The New India .. Appellant Assurance Co. Ltd., Branch Office, Jalna Versus Ashamati @ Mathurabai w/o. Kundlikrao .. Respondents Dahibhate and anr. Shri V.R. Mundada, Advocate for the appellant. Shri V.S. Undre h/f. Shri P.R. Katneshwarkar, Advocate for respondent No.1. CORAM : P.R. BORKAR,J. DATED : 14.06.2010 P.C. :- 1. This is an appeal preferred by the Insurance Company being aggrieved by the judgment and award passed by the Chairman, Motor Accident Claims Tribunal, Jalna, in M.A.C.T. No. 195 of 2007, decided on 03.08.2009, whereby the present appellant and respondent No.2 were jointly and severally directed to pay compensation of Rs. 2,25,000/- along with 7% interest from the date of institution of claim ( 2 ) till its entire realization. 2. Some of the facts giving rise to this appeal are admitted at this stage. Thus, it is no more disputed that deceased Raghunandan was nine month's old son of respondent No.1, who was original claimant. On 07.05.2007 respondent No.1-Ashamati along with her child Raghunandan and her husband were travelling in a truck bearing registration No. MH 22-2918 owned by respondent No.2 and insured with original respondent No.1. They were proceeding from Aurangabad to Nashik. Near village Chandori, the truck which was being driven rashly and negligently, dashed the tree by the side of the road. The truck fell on its side and as a result of dash, bags of grain fell on respondent No.1, her husband and their child. As a result of the accident, the child and husband of the respondent No.1 died and respondent No.1 was injured. For death of Raghunandan, claim petition is filed for getting compensation of Rs. 2,50,000/-. 3. Respondent No - 2 owner of the vehicle did not appear though notice was given to him by publication in the ( 3 ) news-paper. Present appellant filed written statement at Exh.11 and contested the claim. It is stated that it was a goods carriage vehicle and the claimant, her son and her husband were travelling as passengers in the truck and as such there is breach of policy and the insurance company is not liable to pay the compensation. 4. The Tribunal referred to the Insurance Policy in which in one of the columns it is stated that sitting capacity of the vehicle – 7 passangers (1+1+5). In view of that the award was passed against Insurance Company. Fifteen was considered to be multiplier and an amount of Rs. 15,000/- was considered as notional income. 5. The point which arises for my consideration is :- “Whether the appellant proved that there was breach of policy in as much as respondent No.1, her child Raghunandan and husband were travelling as passengers?” 6. Heard Adv. Shri V.R. Mundada for the appellant and Adv. Shri V.S. Undre h/f. Adv. Shri P.R. Katneshwarkar for ( 4 ) respondent Nos. 1. 7. The learned advocate for the appellant drew my attention to Exh.34 which is a copy of insurance certificate produced on record. It is not disputed that it was not a goods truck in which bags of grains were loaded. We can also find that it was goods truck from the policy itself. The goods vehicle’s weight was 16200 kgs. The learned advocate for the appellant argued that wrong format was used while issuing covering note (Exh.34) and therefore we find column of the passengers. In-fact, law prohibits carrying passengers in the goods truck. He drew my attention to Section 147 of the Motor Vehicles Act, 1988. So far as goods truck is concerned, the Act requires insurance company to cover risk of the persons whose liability is covered by Workmen’s Compensation Act in respect of death or bodily injury and such employees could be engaged for driving vehicle or could be a conductor or examiner of ticket in case of public service vehicles and employees carried any goods carriage. So, no passenger was allowed to be carried in goods vehicle. In the claim petition it is not claimed that original respondent No.1 was owner of the goods which are ( 5 ) being carried in the truck. However, in affidavit in lieu of examination-in-chief it is stated in para 3 that the claimant was carrying their luggage and goods to Nashik. In para 9 respondent No.1 admitted that they were coming for work to Nashik and they were to pay fare after reaching the destination. It is further stated that the fare was to be paid to the person with whom the claimant’s husband was working. So, considering the cross-examination, I am satisfied that respondent No.1 and her husband were travelling as passengers with their child in the goods truck. The Tribunal held that in view of particular entry in the cover note (Exh.34) risk of passenger is covered. But the learned advocate for the appellant has produced original certificate of insurance since Exh.35 is not legible and it clearly shows that the policy covers risk of seven employees as per Workmen’s Compensation Act. The original certificate is taken on record and marked “X”. Even otherwise the Motor Vehicles Act, 1988 does not permit carrying of passengers in goods truck and such contract between the insurance company and owner of the vehicle would be void under section 23 of the Indian Contract Act. Such clause would be unlawful. In- fact, it is an offence for the owner of the vehicle, so also ( 6 ) driver to carry passengers and it is breach of terms of the policy. 8. In this view of the matter, I allow this appeal and modify the order. At the same time I hold that respondent No.2 owner of the vehicle is liable to pay compensation. It is stated before this Court that the entire amount of compensation is deposited in this Court. Considering that husband and child of respondent No.1 have expired, I am inclined to direct the Insurance Company to recover amount of compensation from the owner of the vehicle. I also take into consideration that respondent No.1 is poor widow coming of labourer class, whose husband and sole child have expired. In these circumstances, the judgment and award as only against appellant Insurance Company is set aside. However, the judgment and award as against owner of the vehicle – present respondent No.2 is confirmed. In the circumstances, it is directed that the amount deposited in this Court by the appellant – Insurance Company may be disbursed as directed by the Tribunal to respondent No.1 – Ashamati with liberty to the appellant to recover the said amount from present respondent No.2–owner of the vehicle by filing execution ( 7 ) petition directly. The First Appeal is accordingly allowed and disposed of. 9. In view of disposal of the First Appeal, Civil Application No. 11912 of 2009 for stay does not survive and it is disposed of as such. [P.R. BORKAR,J.] snk/2010/JUN10/fa293.10