1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 764 OF 1997 AND FIRST APPEAL NO. 765 OF 1997 F.A.NO.764 OF 1997 The Oriental Insurance Co.Ltd., ) (Notice to be served on the Divisional ) Manager, Solapur Division, Solapur. ).. Appellant (Org.Opp. No.3) Vs 1. Sunita d/o. Basavraj Parte & Ors. ) Aged 9, Occu.: Education, ) 2. Surekha d/o. Basavraj Parte, ) Ages 6, Occ.: Education, ) 3. Ravi s/o. Basavraj Patre, ) Aged 4, Occ. Nil. ) 4. Savita d/o Basavraj Patre, ) Aged 2, Occ. Nil. ) (Nos. 1 to 4 Minors through their ) grand-mother and natural guardian) Smt. Mahadevi w/o. Bhimseath ) Chengati, age 65 years, ) Occ: Nil, R/O. Hasargunjag, ) Tal – Chincholi, Dist.-Gulbarga, ) (karnataka). ) 5. Mr. Ramesh Bhagwandas Wandhwani,) Aged adult, Occ. Business, ) R/o. At and Post Pore, Dist-Baroda,) Gujarat State. ) 6. Veerbhadra Chandrappa Bingi, ) Aged 25, Occ. Service, ) R/o. Shantinagar, Sec – 7. ) Ulhasnagar, Dist – Tane. ).. Respondents (Original Applicants ) -- 2 A N D F.A.NO.765 OF 1997 The Oriental Insurance Co.Ltd., ) (Notice to be served on the Divisional ) Manager, Solapur Division, Solapur. ).. Appellant (Org.Opp. No.3) Vs 1. Sunita d/o. Basavraj Parte & Ors. ) Aged 9, Occu.: Education, ) 2. Surekha d/o. Basavraj Parte, ) Ages 6, Occ.: Education, ) 3. Ravi s/o. Basavraj Patre, ) Aged 4, Occ. Nil. ) 4. Savita d/o Basavraj Patre, ) Aged 2, Occ. Nil. ) (Nos. 1 to 4 Minors through their ) grand-mother and natural guardian) Smt. Mahadevi w/o. Bhimseath ) Chengati, age 65 years, ) Occ: Nil, R/O. Hasargunjag, ) Tal – Chincholi, Dist.-Gulbarga, ) (karnataka). ) 5. Mr. Ramesh Bhagwandas Wandhwani,) Aged adult, Occ. Business, ) R/o. At and Post Pore, Dist-Baroda,) Gujarat State. ).. Respondents (Original Applicants ) -- Shri S.R. Singh for the Appellant. None for the Respondents. -- CORAM : A.S. OKA, J DATED : 5TH JANUARY, 2010. 3 ORAL JUDGMENT : Submissions of the learned counsel appearing for the Appellant were heard on 14th December, 2009. These two Appeals can be disposed of by a common judgment as the Appeals arise out of the claim Petitions filed for claiming compensation arising out of the same accident. The subject matter of First Appeal No.764 of 1997 is the award in Claim Application No.347 of 1990. The said claim was made by the Claimants claiming compensation on account of death of their father. The claim Petition subject matter of First Appeal No.765 of 1997 is filed by the same Claimants claiming compensation on account of demise of their mother. The Appellant/Company is the Insurer of the vehicle involved in the accident. The vehicle involved is a tanker which was insured with the Appellant Company at the relevant time. 2. Only contention raised by the learned counsel appearing for the Appellant is that the deceased were gratuitous passengers in the tanker. None appears for the Respondents. 3. I have perused the impugned judgment and the record. In the Claim Petition No.347 of 1990, the mother of the deceased Lalita was examined. In her examination-in-chief, she has stated that the deceased Basavraj, his wife (the deceased Lalita) and children were residing at Bombay at the time of the accident. The deceased Basavraj and his family 4 members had come to the village for the purposes of attending a marriage ceremony. She stated that after attending the marriage ceremony, the deceased along with his family members were going back to Bombay by the tanker. There is a bald statement made by her that the deceased was carrying goods. The evidence of the same witness has been relied upon in the other Claim Petition. It is not the case made out by the Claimants that the deceased persons had hired the tanker for carrying the goods which are normally carried by a tanker. Going by the evidence of the said witness, it is obvious that the deceased along with his family members were travelling in the tanker as gratuitous passengers. In fact, in Paragraph 9 of the judgment, the learned Member of the Tribunal has observed that it is an admitted fact that the deceased were gratuitous passengers in the tanker and as the driver of the tanker was friend of the deceased Basavraj, by way of courtesy, the driver allowed the deceased to travel as gratuitous passengers. It is, therefore, obvious that there was no statutory liability of the Appellant and the Appellant was not liable to indemnify the insured against the claim made by gratuitous passengers. In the circumstances, the Appellant is right in contending that the Appellant could not have been held liable to honour the award passed against Insurer. 4. Hence the impugned Judgments and Awards are modified and it is directed that the Claim Petitions stand dismissed as against the Appellant. The rest of the Awards stand. If the Appellant has paid compensation payable under the Awards, it will be open for the Appellant 5 to recover compensation amount only from the insured by filing execution application and it will not be necessary for the Appellant to file a seperate proceeding for recovery of the said amount. 5. The Appeals are allowed in above terms with no order as to costs. JUDGE