(1) FA. 704.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 704 OF 2005 AND CIVIL APPLICATION NO. 8242 OF 2005 IN F.A. 704 OF 2005 The New India Insurance Co. Ltd., Through Divisional Manager, Aurangabad .. Appellant VERSUS 1] Smt. Bhagwan alias Sumit Pralhad Jadhav Age : 7 years, Under Guardianship of Respondent no.2 2] Bhimrao Dharma Jadhav, Age : 69 years, 3] Sau. Sumanbai Bhimrao Jadhav, Age : 61 years, Nos. 1 to 3 are R/o Purmepada, Tal. and Dist. Dhule 4] Charanjitsingh Trilokina, Age : 51 years, Truck owner, R/o 299, Transport Nagar, Indore (M.P.) 5] Gyansinh Nihalsinh Jaat, Age : 51 years, Occu.: Driver, R/o Badi Chawl, Indoor .. Respondents Mr. S.G. Chapalgaonkar, Advocate for the Appellant Mr. R.R. Patil, Advocate for respondent nos. 2 and 3 None present for respondent nos.1,4 and 5 though served by publication. ... CORAM : K.U. CHANDIWAL, J. DATED : 7TH MAY, 2010 ORAL JUDGMENT:- 1] Heard. Admit. By consent heard finally. (2) FA. 704.2005 The deceased, while travelling in a oil tanker sitting in the cabin thereof with other 4/5 persons suffered the accident as the tanker turtled due to negligence of the driver and lost his precious life. The claimants contemplate, the deceased was carrying 50 Kgs. of beans with him and he was a fare paying passenger, being owner of the goods. 2] Mr. Chapalgaonkar points, this theory is not germinated in any record in the form of either panchanama, FIR or any other proof. This is for the first time flashed by the claimants. 3] Mr. Patil for the claimants informs, the peculiar nature of the coverage of insurance illustrate that it was meant for 3+2+2 which includes carrying passengers in the tanker. 4] The law on the point is well recognised, in terms of section 147 of the Motor Vehicle Act discussed in the matter of Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and others AIR 2003 SC 1009(1) and also reiterated in the matter of National Insurance Co. Ltd. Vs. Rattani and others 2009(1) T.A.C. 420 (S.C.) The Apex Court held the carriage of passengers in vehicle, meant for carrying goods, the insurer would have no liability therefor if any accident takes place. (3) FA. 704.2005 5] The observations in the present matter of the learned Judge, leans to indicate probabilities. It is not certainties that either there was a coverage of the passenger or that there could be travel by the deceased with the beans. The very nature of the tanker, specify it was meant for transportation of oil, while insurance policy inhibit carrying passenger other than the owner of the oil or tanker or the goods to be transported to the destination. In this view of the matter, the factum of accident, loss of life of the deceased claimants being suffered, having left as orphan, cannot be disputed. The liability of the insurance company to answer, in terms of section 147 of Motor Vehicle Act will seldom arise. 6] In the result, the Appeal is partly allowed. The award of the learned Judge in M.A.C.P. 604 of 1998 dated 16.2.2005 is set aside to the extent of appellant Insurance Company. No costs. The amount deposited by the appellant Insurance Company in this Court be remitted to it. Civil Application no. 8242 of 2005 also stands disposed of. Sd/- (K.U. CHANDIWAL, J.) arp