1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.326 OF 1994 1 Ashok Transport Company Prop. Pravin Maheshwar Desai 2 Uddhav Kashinath Walawalkar ...Appellants vs. 1 New India Assurance Co. Ltd. 2 Sushila Janardan Swami 3 Gangubai Mannammat Swami 4 Bhalchandra Janardan Swami 5 Mahesh Janardan Swami 6 Jagdish Janardan Swami ...Respondents Mr.S.M.Oak i/b Mr.S.H.Joshi for the appellants Mr.S.R.Singh for respondent no.1 Mr.Amir Sale for respondent nos.2,4 to 6. CORAM :A.S.OKA,J. DATE : MARCH 12, 2010 JUDGMENT: 1 By this appeal, the appellants who are the opponent nos.1 and 3 have taken an exception to the Judgment and Award dated 19th January 1993 passed by the learned Member of the Motor Accident Claims Tribunal on a claim petition filed by the 2nd to 5th respondents. The claim petition has been filed by the said respondents on account of death of one Janardan in a motor accident on 11th October 1987. 2 The case of the original claimants is that the deceased was proceeding to Phaltan on 11th October 1987. He could not get the bus of State Transport Corporation and therefore, he travelled by a truck bearing no.MWE 1413. The truck was owned at the relevant time by the appellants. The truck met with an accident. The 2 deceased sustained head injuries and he ultimately succumbed to the head injuries. The allegation in the claim petition was that the accident occurred due to rash and negligent driving of the driver (6th respondent) of the truck. The claim petition was contested by the 1st respondent (insurer of the truck). It was contended that deceased was travelling in the truck as gratuitous passenger and therefore, the said company is not liable under the policy. It was contended that the insured has committed a breach of terms and conditions of the policy. The Tribunal held that the accident occurred due to rash and negligent driving on the part of the driver of the truck. The Tribunal proceed to award compensation of Rs. 1,00,800/- together with costs and future interest at the rate of 12% per annum from the date of petition till realisation of the whole amount. However, the Tribunal held that the first respondent insurer has established that the insured committed a breach of terms and conditions of the policy by allowing a gratuitous passenger to travel by the truck. Therefore, the first respondent was exonerated. 2 The learned counsel for the appellants submitted that there is no material on record to show that the deceased was a gratuitous passenger. He submitted that on plain reading of section 95 of the Motor Vehicles Act, 1939, the policy was required to cover the liability of a person traveling as a passenger in the truck. He submitted that there is no prohibition against the gratuitous passenger travelling by the truck. He invited my attention to the definition of the motor vehicle under Clause 18 of section 2 of the Motor Vehicles Act,1939 (hereinafter referred to as said Act of 1939). Relying upon section 95, he submitted that liability on account of death or bodily injury to any person who is a 3 gratuitous passenger is not excluded. He invited my attention to the evidence on this aspect and submitted that the first respondent has not discharged the burden of proving the breach of terms and conditions of the policy. 3 I have given careful consideration to the submissions. Perusal of the claim petition shows that a specific case of the claimants is that as the deceased could not get the State Transport Corporation bus, he travelled by a truck which was a goods vehicle. To that effect there is clear averment in the claim petition. 4 The policy of the insurance in the present case will be governed by section 95 of the said Act of 1939. In view of clause (c) of proviso (i) of sub section 1 of section 95, a policy of insurance is not required to cover the liability of a person carried in a goods vehicle. This is not a case where the vehicle is such that passengers are carried for hire or reward therein. It is not in dispute that the vehicle was a goods vehicle. 6 The point is no longer res integra. The settled law is that insurance company is not liable to cover the liability on account of death or bodily injury to gratuitous passenger in a goods vehicle. One such decision is in the case of Oriental Insurance Co.Ltd. Vs. Devireddy Konda Reddy and other (AIR 2003 SC 1009). The case made out in the claim petition in the present case is that the deceased was a gratuitous passenger in a goods vehicle. 7 In the circumstances, the finding recorded by the Tribunal that breach of terms and conditions of the 4 policy was established cannot be faulted with. No case for interference is made out. First Appeal is dismissed with no order as to costs. JUDGE