1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2907 OF 2009 Kadubhai Gulabhai Pathan and others .. Appellants Versus The New India Assurance Co. Ltd. and others .. Respondents Shri R. V. Gore, Advocate for Appellants. None for the Respondent No. 1. Shri Jiwan J. Patil, Advocate for Respondent Nos. 2 and 3. CORAM : K. K. TATED, J. DATE : 01ST DECEMBER, 2010. PER COURT : . Heard learned counsel Mr. Gore for appellants and learned counsel Mr. Patil for respondent Nos. 2 and 3. None appeared for respondent No. 1. The present appeal preferred by original claimants against the judgment and award dated 30th August, 2007 passed by Member, Motor Accidents Claim Tribunal, Aurangabad in M.A.C.P. No. 883/2006. The Tribunal held that respondent Nos. 2 and 3 are liable to pay compensation to the 2 tune of Rs. 4,90,000/- inclusive of amount of no fault liability with interest at the rate of 7.5% from the date of petition till its realization. The Tribunal further held that the Insurance Company is not liable to pay the compensation because there is breach of terms and conditions of Insurance policy. 2. This Court by order dated 10th November, 2009 made it clear that the matter will be taken for final hearing at the stage of admission itself and, therefore, called record and proceedings. 3. Learned counsel appearing on behalf of appellants/original claimants submits that they filed the present appeal on limited ground that the Tribunal erred in coming to the conclusion that the Insurance Company is not liable to pay the compensation. He further submits that the Tribunal should have directed the Insurance Company to pay the compensation first and then recover the same from the respondent Nos. 2 and 3 i. e. owner and driver of the vehicle. 4. It is the case of appellants that on 29th October, 2006 the deceased Latif S/o Kadubhai Pathan along with Shaikh Nisar had been to the company for daily duty and after completing 3 daily duty, they have done the over time work in the night till 12.00 p.m. Both had come to Bidkin. One Bajaj rickshaw was proceeding to Dhorkin. They boarded in the said Bajaj rickshaw bearing No. MH-20/AA-9694. The respondent No. 3 drove the rickshaw rashly and negligently at a high speed from Bidkin towards Paithan. On the way the accident took place in which Latif Pathan died. 5. The appellants filed claim petition bearing M.A.C.P. No. 883/2006 before the Member, Motor Accidents Claim Tribunal, Aurangabad under Sec. 160 and 140 of the Motor Vehicles Act claiming compensation in the sum of Rs. 6,00,000/-. In the said claim petition respondent Nos. 2 and 3 filed written statement dated 21st March, 2007. In para 2 of the said written statement they admitted that the deceased was travelling in autorickshaw bearing No. MH-20/AA-9694, which was owned by the respondent No. 2. 5. The respondent No. 1/Insurance Company also filed its written statement dated 20th March, 2007. In its written statement, the Insurance Company specifically raised the objection that the deceased Latif was travelling in the goods 4 carrying vehicle and, therefore, they were not responsible to make the payment of compensation. Para 11 of the written statement reads as under : "11. Without prejudice to the above contentions and rights of this respondent it is submitted that, as per pleadings of the claim petition and documents placed on record, it can be gathered that deceased Latif was traveling in Goods carrying vehicle. In this behalf it is submitted that deceased was traveling in goods carrier as passenger, and even otherwise this respondent do not cover the risk of passengers in goods carrier. On this ground also the claim petitioner deserves to be dismissed. It is to be noted that copy of policy annexed with this claim petition is the policy of Goods Carrying Vehicle (open). This itself is sufficient to hold that the deceased was traveling in goods carrying vehicle, which is not permissible and risk of such types of passengers is not covered under the policy. Hence this respondent is not liable to indemnify the owner of the vehicle and ultimately to the claimants." 6. Considering the submissions made by the respondent No. 1/Insurance Company, the Tribunal held that the deceased was travelling in goods vehicle and, therefore, there was breach of terms and conditions of Insurance Policy. Considering these facts and ruling of Apex Court in the matter of Oriental 5 Insurance Co. V/s. Devi Reddy A.I.R. 2003 S. C. 1009 and unreported judgment of High Court Bombay Bench at Aurangabad in First Appeal No. 827/2006 United India Assurance Company Vs. Anubai Gopichand, held that in case of death of gratuitous passanger in goods vehicle, if he met with an accident the dependents of such person would not be entitled to claim compensation from Insurance Company. 7. Learned counsel Mr. Gore, appearing on behalf of appellants submits that the Tribunal failed to consider that Insurance Company can recover amount from owner and driver. He further submits that the Tribunal should have directed the Insurance Company to pay the compensation first and recover the same from respondent Nos. 2 and 3, in view of judgment of Apex Court in the mater of Deddappa and others Vs. Branch Manager, National Insurance Co. Ltd. reported in 2007 DGLS(Soft) 1277. He mainly relied on head note 2, which reads thus : "(ii) Constitution of India, 1950 - Article 142 - Motor Vehicles Act, 1988 - Section 166 - Compensation - Cancellation of insurance Policy - Libiality of insurer - Vehicles insured for the period 6 17.10.1997 and 16.10.1998 - Cancellation of insurance policy due to dishonour of cheque - Information communicated to owner on 6.11.1997 - Accident occurred on 6.2.1998 - Insurance company not liable to satisfy the claim - However, Appellant hails from lowest strata of society insurance company directed to pay the amount of claim to appellants and recover the same from owner of the vehicle." 8. It is correct that in that case the Apex Court directed Insurance Company to pay the compensation to the claimant first and then recover from the owner and the driver. But the said directions issued by the Apex Court under Article 142 of the Constitution of India. Para 28 of the said judgment reads thus : "28. However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extra-ordinary jurisdiction under Article 142 of the Constitution of India, direct the Respondent No. 1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle viz., Respondent Nos. 2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly." 9. The High Court cannot pass such directions under Article 142 of the Constitution of India. The Apex Court in a case 7 reported in AIR 2008 S. C. 403 Oriental Insurance Co. v. Rajkumari held; Head Note B reads as under : "(B) Motor Vehicles Act (59 of 1988). S. 147 - Liability of insurer - Limited to certain sum - Insured a transport company - No evidence adduced to show that claimant would have difficulty in recovering sum awarded from insured - Insurer cannot be directed to pay entire compensation and subsequently recover excess paid from insured." The Apex Court in another reported judgment (2009) 8 SCC 785 National Insurance Co. Ltd. v. Parvathneni and another has held thus, : "Constitution of India - Arts. 142 and 136 - Direction to Insurance Company to pay compensation even though Insurance Company not liable under law but giving liberty to Insurance Company to recover the amount from owner of vehicle - Validity of such direction - Doubted - Propriety of such directions given in earlier cases also doubted - Matter referred to Chief Justice of India for constituting a larger Bench - Insurance - Insurer's liability, if any, in the absence of any subsisting policy - Insurance Act, 8 1938 - S. 64-VB - Motor Vehicles Act, 1988 - Ss. 147 and 149." If there is breach of terms and conditions of Insurance policy, then Tribunal cannot direct the Insurance Company to pay first and then recover from the owner and the driver. 10. In view of the above mentioned facts and circumstances, it is crystal clear that the deceased Latif was traveling in goods vehicle as a gratuitous passenger, therefore, the Tribunal has rightly held that the Insurance Company is not liable to pay the amount . First appeal stands dismissed with no order as to costs. [K. K. TATED, J.] bsb/Dec. 10