1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.1435 of 2008 With Civil Application No.3850 of 2008 United India Insurance Company Ltd. Appellant Vs. Mangal Chandrakant Sapkal & ors. Respondents Mr.Nikhil Mehta i/b. KMC Legal Venture. Mr.Dilip Bodake for resp.nos.1 to 6. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. March 13, 2009. P.C. 1. We have heard the learned counsel for the appellant as well as for the respondents - claimants. Paper-book has been circulated. This appeal arises from the award passed by the Motor Accident Claims Tribunal at Satara on 28/6/2007 in Motor Accident Claim Petition No.57 of 2004. The claim for compensation arising from the Motor Vehicles Act, 1988 has been partly allowed and the present appellant and the owner of the vehicle have been jointly and severally directed to pay a sum of Rs.7,29,240/- with interest thereon at the rate of 7.5% per annum from the date of application till realisation minus no fault liability amount if any is already paid or 2 deposited. 2. Chandrakant Sapkal was travelling in goods truck No.KA-14/7199 to Mumbai on 29/10/2003. When the said vehicle reached village Kamthadi, Taluka Bhor, the driver of the goods truck lost his control and the truck rammed into a tree on the left side of the road thereby causing heavy impact. As a result Chandrakant who was sitting inside the truck was crushed and he died on the spot due to severe bodily injuries. The deceased was the husband of the claimant no.1 and father of claimant nos.2 to 4, whereas claimant nos.5 and 6 are his parents. The applicants claimed that Chandrakant was serving in Balmer Lawrie Van Leer Ltd. at Mumbai as an operator and was a permanent employee with monthly salary of Rs.9495/-. The claim was opposed by the present appellant by filing its Written Statement at Exhibit 14. The owner of the vehicle remained absent despite service of summons vide Exhibit 9 and, therefore, the Tribunal proceeded ex parte against the owner of the vehicle. Based on the Written Statement filed by the present appellant the Tribunal framed the following issues and recorded its findings as indicated against each of the issues, based on the oral depositions of applicant no.1 in 3 support of the claim and the appellant did not examine any witness. Issues Findings (1) Do applicants prove that deceased Yes Chandrakant was travelling with his goods in a truck bearing No.KA-14-7199? (2) Do they prove that accident took Yes place because of rash and negligent driving of the driver on the said truck? (3) Does insurer prove that there is No breach of terms and conditions of insurance policy? (4) Whether the applicants are entitled Yes for compensation? . The Tribunal also considered the panchanama of the scene of offence at Exhibit 20. 4 3. As before the Claims Tribunal, the learned counsel for the appellant has challenged the impugned award only on the ground that the deceased was a gratuitous passenger without any hire or reward and, therefore, there was a breach of the terms and conditions of the insurance policy and consequently it was not the liability of the Insurance Company to pay the compensation. The Tribunal noted that the driver of the truck was holding a valid licence at Exhibit 24 and there was nothing on record to show that he was transporting the passengers in the goods carriage. So far as the deceased is concerned, the Tribunal noted that he was carrying two jawor bags and the charges of which were allegedly paid by the deceased to the driver. The Tribunal, therefore, held that it could not be safely accepted that the deceased was not transporting the goods merely because the whole truck was not hired by him. 4. The learned counsel for the appellant has referred to the following decisions in support of his challenge to the impugned award: (1) New India Assurance Company Vs. Asha Rani 5 & ors. [(2003) 2 SCC 223] [(2003) 2 SCC 223] [(2003) 2 SCC 223] (2) Dr. T.V.Jose Vs. Chacko P.M. alias Thankachan & ors. [(2001) 8 SCC 748] [(2001) 8 SCC 748] [(2001) 8 SCC 748]. . The learned counsel also relied upon a judgment of this Court (S.B.) in First Appeal No.1851 of 2006 rendered on 5th July 2007. 5. It is pertinent to note that Section 147 of the Motor Vehicles Act, 1988 is different from Section 95(1) of the Motor Vehicles Act, 1939. Under sub-section (1)(b) of Section 147 of the Motor Vehicles Act, 1988 compulsory policy of insurance required under the statute must now provide against any liability which may be incurred on the owner of the vehicle in respect of the death of or bodily injury to any person including owner of the goods or authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. 6. In the instant case the Tribunal has recorded a finding that the deceased was not a gratuitous 6 passenger and he was in fact carrying his goods (two bags of jowar) in the subject vehicle and he accompanied his goods so as to reach Mumbai and, therefore, he could not be called a gratuitous passenger not carried for hire or reward. Consequently the decisions relied upon by the learned counsel for the appellant and as referred to hereinabove are not applicable in the instant case. 7. There is no other challenge on any ground to the impugned award and, therefore, we do not see any reason to entertain the appeal and the same must fail at the threshold. 8. Appeal is dismissed. 9. Refund of Rs.25,000/- as deposited with the Registry of this Court will be as per the Rules. 10. Civil Application does not survive and the same stands disposed off. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)