1 F.A. No. 90 of 2000 hvn IN THE HIGH COURT OF JUDICAUTRE AT BOMBAY CIVIL APPELALTE JURISDICTION FIRST APPEAL NO. 90 OF 2000 The New India Assurance Co. Ltd. ... Appellants Versus Mrs.Vimal Shantaram Kende and Ors. ... Respondents Mr. S.R. Singh for the appellants. Mr. S.R. Kadam for respondent no. 3. CORAM : SMT.R.P. SONDURBALDOTA, J. DATED : APRIL 08, 2011 P.C. 1. This First Appeal is filed by the Insurance Company to challenge the judgment and award dated 30th April, 1998 passed by the Motor Accident Claims Tribunal, Satara awarding compensation to the applicant for the injury sustained by him in the motor accident. According to the appellant, it could not have been held responsible for the payment of compensation to the applicant in view of the breach of the terms and conditions of the Insurance policy committed by respondent no. 3, the owner of the offending vehicle. 2. Respondent no. 1 runs a canteen at S.T. Depot at village Salpe. On 29th October, 1992 at about 3.30 p.m. respondent no. 1 2 F.A. No. 90 of 2000 wanted to go to Lonand for purchase of grocery articles from the market. At that time she was noticed by respondent no. 2 who was driving tempo towards Lonand. Respondent nos. 1 and 2 knew each other since long as respondent no. 2 used to frequently visit the canteen of respondent no. 1 for food. On seeing respondent no. 1 he stopped his tempo and offered lift to her. She accepted the lift and sat towards cleaner side. On the way towards Lonand, respondent no. 2 took two more passengers in his tempo with whom he was acquainted. When the vehicle was about 1/2 km from Lonand, it met with an accident in which respondent no. 1 sustained injuries. She filed an application claiming compensation for the same from respondent no. 2 driver, respondent no. 3 owner of the tempo and appellant insurer for respondent no. 3. 3. The appellant contested the claim denying its liability to pay compensation to respondent no.1 who was gratituous passenger in the goods vehicle. According to the appellant no passenger could have traveled in the goods vehicle other than the owner accompanying the goods. Carrying passenger in the goods vehicle though gratituously amounts to breach of condition of the insurance policy which absolves the insurance company. 3 F.A. No. 90 of 2000 4. It is well established that the defence taken by the insurance company on breach of terms and conditions of the insurance policy by the insured, has to be established entirely by it. Further, it is not sufficient for the insurance company to establish that there was breach of the term of the insurance policy. It must establish that the breach was at the instance of the owner of the vehicle. Perusal of the evidence on record in the instant case shows that the breach was neither with the knowledge or with consent of respondent no. 3, the owner. The facts established show that respondent no. 1 while she was waiting at the road side for transportation to Lonand, was spotted by respondent no. 2 driver. As both were well acquainted with each other, he offered her lift upto Lonand. It being a chance meeting, can hardly be said to be with the knowledge and consent of respondent no. 3 owner. There is no evidence whatsoever brought on record by the insurance company to show that breach had in fact been committed by the owner. Therefore, the tribunal has rightly held the insurance company also liable to pay the compensation to respondent no. 1. Hence, appeal is dismissed. (SMT.R.P. SONDURBALDOTA,J.)