1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** 1. S.B.CIVIL MISC. APPEAL NO.708/1999 (Babu Lal Vs. Kan Singh and ors.) 2. S.B.CIVIL CROSS OBJ. NO.12/2001 (Babu Lal Vs. Kan Singh and ors.) 3. S.B.CIVIL MISC. APPEAL NO.703/1999 (Dhanna Lal Vs. Kan Singh and ors.) 4. S.B.CIVIL CROSS OBJ. NO.6/2001 (Dhanna Lal Vs. Kan Singh and ors.) 5. S.B.CIVIL MISC. APPEAL NO.707/1999 (Radha Mohan Vs. Kan Singh and ors.) 6. S.B.CIVIL CROSS OBJ. NO.7/2001 (Radha Mohan Vs. Kan Singh and ors.) 7. S.B.CIVIL MISC. APPEAL NO.849/2000 (Bhagwan Sahai Vs. Kan Singh and ors.) 8. S.B.CIVIL CROSS OBJ. NO.19/2001 (Bhagwan Sahai Vs. Kan Singh and ors.) 9. S.B.CIVIL MISC. APPEAL NO.711/1999 (Bharat Lal Vs. Kan Singh and ors.) 10. S.B.CIVIL CROSS OBJ. NO.27/2001 (Bharat Lal Meena Vs. Kan Singh and ors.) 11. S.B.CIVIL MISC. APPEAL NO.704/1999 (Bhabbal Ram Vs. Kan Singh and ors.) Date of Judgment : 05-05-2009 HON'BLE MR.JUSTICE GUMAN SINGH Mr.K.N.Tiwari,for the appellants. Mr.R.S.Rathore, for the respondent-owners. Ms.Manju Jain, for respondent-Ins.Co. Heard learned counsel for the parties. 2. These appeals have been preferred on behalf of appellant-claimants inter alia for 2 enhancement of compensation awarded by the learned Motor Accident Claims Tribunal, Jaipur city, Jaipur and for fixing liability on the Insurance Company vide judgment dated 20.1.1999. The respondent no.2 Badri Prasad, owner of the offending vehicle No.RRB-5477 has filed cross objections in all the appeals except CMA No.704/99 (Bhabbal Ram Vs. Kan Singh and ors.). 3. As per the facts of the case, accident took place on 16.8.1991 at 3.30 PM when deceased and injured persons were traveling in Tanker No.5477 along with their goods and were going from Jaipur to their village near Balaji turn. The vehicle was being driven rashly and negligently and turned turtle causing death of Bhikharam and Brij Mohan and injury to others. The police case at P.S. Jawahar Nagar was registered. The aforesaid claim cases were filed by the dependents of deceased as well as injured persons before the MACT, Jaipur city, Jaipur. The learned Tribunal framed issues and after consolidating the claim petitions, decided the same by a common judgment/award dated 20.1.1999. The respondent-owner and 3 driver were exparte before the Tribunal. The claim petitions were contested by the Insurance Company only. Issue no.3 was framed regarding the liability of the Insurance Company and the learned Tribunal was called upon to decide whether for the objections taken before the Tribunal, Insurance Company was liable to be exonerated from any liability under the claim petitions. The learned Tribunal decided the issue and gave finding that the vehicle was not insured for taking passengers and no extra premium was charged from the owner of the vehicle and, as such, Insurance Company was exonerated from the liability. 4. Learned counsel for the appellant submits that the Insurance Company has been wrongly exonerated by the learned Tribunal as extra premium has been charged from the non-fair paying passengers under the policy. It is also submitted that all the passengers were traveling with the goods and, as such, they are the owner of the goods and they are also entitled for compensation from Insurance Company. It is further submitted 4 that all the injured and deceased passengers were traveling in the Tanker with the goods and they did not pay any fair of their own but they paid fare for the goods and, as such, under the terms of the policy, their liability is covered as the Company had entered into contractual liability for non- fair paying passengers and additional premium was paid on that account. 5. Per contra, learned counsel for the cross-objector/respondent owner has strenuously argued that Insurance Company has been wrongly exonerated as the injured and deceased persons who died in the accident were non-fair paying passengers and they paid fare only for goods and, as such, Insurance Company cannot be exonerated from its liability. It was also argued that owner did not participate in the enquiry of the claim petitions as they were exparte and, therefore, in the interest of justice, the owner should be afforded opportunity to put up his case before the Tribunal and as such the case deserves to be remanded. 6. Per contra, the learned counsel for 5 Insurance Company has supported the judgment of the Tribunal and submitted that the learned Tribunal has taken into consideration evidence adduced during inquiry and has awarded adequate compensation and calls for no interference. 7. After hearing the rival contentions, and going through the award as also record of the case, it is revealed that owner who is cross-objector before this court could not place his case before the Tribunal as he was exparte. The cross-objector owner has come with the specific plea that he had contractual relationship with the Insurance Company as he had paid additional premium for liability for non-fare paying passengers and as such he deserves to be exonerated from the said liability. The appellants have come with the case for enhancement of compensation and as well as for fixing liability on the Insurance Company and has also prayed for remanding the case. Thus the owner has been exparte and the matter deserves to be decided after considering the owner's case in the matter and therefore, all these cases deserves to be remanded for 6 fresh decision on all the issues after giving opportunity of hearing and leading evidence to all the parties before the Tribunal. 8. Accordingly, impugned judgment and award dated 20.1.1999 passed in CMA Nos.708/99, 703/99, 707/99, 849/2000, 711/99 and 704/99 by the learned Tribunal is set aside and all the cases are remanded back to the Tribunal for fresh decision on all the issues after giving opportunity of hearing and leading evidence to all the parties if any. The parties are directed to remain present before the Tribunal on 28.5.2009. Record be sent forthwith. Accordingly, the cross- objections No.12/01, 6/01, 7/01, 19/01 and 27/01 also stand disposed of. (GUMAN SINGH),J. Sandeep/- item no.8to18