HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A. No.2460 of 2003 JUDGMENT: This appeal is filed by the insurance company aggrieved by the judgment in O.P. No.740 of 1998 on the file of the II Additional Chie Judge, Kadapa, dated 25.7.2002, whereby and whereunder an amount of Rs.1,22,000/- was awarded by the learned Chief Judge as compensation. The brief facts of the case are that the old aged parents, wife and sons of the deceased Battala Devaraju filed the claim petition in M.V.O.P. No. 740/98 alleging that on 8.7.1996 at about 11.50 a.m. while the deceased and some others boarded the lorry bearing No. TN 02 Z 9304 of the 6th respondent by paying Rs. 20/- each and when it reached near Apparajupet, the driver of the said lorry drove the same in a rash and negligent manner and in high speed, due to which, the driver lost control over the vehicle and it turned turtle and fell down by the side of the road. As a consequence, the deceased sustained severe injuries and died while undergoing treatment. The 6th respondent is the owner of the vehicle and the appellant is the insurer of the vehicle. Hence, the respondent Nos. 1 to 5-claimants, f1iled a claim petition before the Tribunal claiming compensation of Rs.1,50,000/-. The owner of the lorry remained ex parte. The appellant-insurance company resisted the claim of the respondents-claimants by filing written statement stating that the vehicle in question is a ‘goods vehicle’ and as per the conditions of the policy, the vehicle should not be used for carrying passengers, except the employees not exceeding six in number. Since the deceased is a gratuitous passenger, it is not liable to pay any compensation amount. It also pleaded that the quantum of compensation is highly excessive and exorbitant. On the basis of the above pleadings, the following issues were settled for trial: 1. Whether the deceased Battala Devaraju died in a motor vehicle accident on 8.7.1996 due to rash and negligent driving of R1’s Tata Goods truck bearing N. TN 02 Z 9304 by its driver ? 2. Whether the petitioners are entitled for compensation and if so to what amount and from whom ? 3. To what relief ? During trial, on behalf of the respondents-claimants, P.ws. 1 and 2 were examined and Exs. A1 to A5 were marked. On behalf of the appellant, RW1 was examined and Ex.B1 was marked. The Tribunal, after considering the oral and documentary on record, came to the conclusion that the deceased was not gratuitous passenger. While fixing the monthly income of the deceased at Rs.900/- and after deducting 1/3rd of the amount towards personal expenses, it held that the deceased would be contributing about Rs. 600/- per month to the family and fixed the annual dependency at Rs. 7,200/- and by applying the multiplier of ‘15’, an amount of Rs.1,08,000/- was awarded towards loss of dependency. The Tribunal further awarded an amount of RS. 10,000/- towards loss of consortium, Rs. 2,000/- towards transportation and another sum of Rs. 2,000/- towards funeral expenses. Thus, the Tribunal awarded a total compensation of Rs.1,08,000/-. Aggrieved by the same, the insurance company has filed this appeal. Learned counsel for the appellant-insurance company would contend that the deceased was a gratuitous passenger and that the policy did not permit use of the lorry for conveyance of passengers for hire or reward, hence, there was breach of the conditions and the insurance company is not liable to pay any compensation amount and therefore, no liability can be fastened against it. The question of the liability of the insurance company in respect of gratuitous passengers travelling in a ‘goods vehicle’ has been considered by the Apex Court in the case of NEW INDIA ASSURANCE CO. LTD., vs. ASHA RANI & OTHERS([1]) wherein it was held that the insurer will not be liable for paying any compensation amount. In the instant case, the vehicle which was involved in the accident is a ‘goods carriage’ and the same has been used for a purpose not allowed by the permit and since it has been proved that the vehicle has been used in breach of the policy conditions, the insurance company is not liable to pay any compensation amount and it has to be absolved of its liability. Therefore, while following the aforementioned decision of the Apex Court, I am of the opinion that the tribunal was in error in awarding compensation against the appellant-insurance company. Accordingly, the appeal is allowed and the award of the Tribunal in so far as the appellant-insurance company is concerned is set aside. It is, however, clarified that the 6th respondent alone is liable for payment of the compensation amount and the respondents-claimants are at liberty to proceed against the 6th respondent for payment of the compensation amount. Further, if any compensation has been paid by the appellant- insurance company pursuant to the impugned award, the appellant-insurance company is at liberty to proceed against the owner of the vehicle for recovery of the same. It is made clear that the compensation amount as ordered by the Tribunal shall carry interest at 7.5% instead of 9% per annum. No costs. __________________________ GHULAM MOHAMMED,J DATE: 15th July, 2010 pnb [1] 2003 ACJ 1