1 fa262-99.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.262 OF 1999 The New India Assurance Co. Ltd. ..Appellant Vs. Smt.Kamal Kondiram Dange and others. ..Respondents -- Mr.M.G.Barve, for appellant. Mr.P.B.Shah, for respondent no.1. -- CORAM : A.S.OKA, J. DATE : 13 th DECEMBER, 2010 JUDGMENT : Heard learned counsel for the appellant and learned counsel for the first to third respondents. 2] The challenge in this appeal is to that part of the impugned judgment and award by which, the appellant was held liable to satisfy the award passed against the insured. The first to third respondents filed a claim petition under Section 166 of the Motor Vehicles Act, 1988. They claimed compensation on account of death of one Kondiram in a motor accident. The accident occurred on 1 st March, 1993. According to the case of first to third respondents, the deceased Kondiram was travelling by 2 fa262-99.sxw a tanker which was owned by the fourth and fifth respondents herein. The tanker was admittedly insured with the appellant on the day of accident. The tanker met with the accident while it was trying to over take a truck. 3] The claim petition was not contested by the owners of the tanker. There was a written statement filed by the appellant contending that the deceased was travelling as a passenger in the tanker and, therefore, the insured has committed a breach of the terms and conditions of the policy. It appears that the first to third respondents have made out a case that the deceased was travelling in the tanker along with his goods as the owner of the goods. The Tribunal held that the first to third respondents are entitled to compensation of Rs.2,50,000/- with interest. The Tribunal held that the deceased was simply a passenger in the tanker and there is no evidence to show that hire charges were paid. Therefore, the Tribunal held that appellant was liable to pay the compensation. 4] Learned counsel for the appellant submitted that going by the finding of the tribunal that the deceased was travelling as a passenger in the tanker, the appellant was not liable as the appellant was not under an obligation to cover the liability of passengers in a goods vehicle. He, therefore, submitted that no award could have been made against the appellant. Learned counsel for the first to third respondents invited my attention to the oral evidence on record and submitted that the version of the first respondent that the deceased was travelling along with his goods, was not challenged in the cross-examination. He submitted that the finding that the deceased was merely a passenger is required to be corrected by 3 fa262-99.sxw exercising powers under Rule 33 of Order XLI of the Code of Civil Procedure, 1908. He submitted that in any case, the appellant can be directed to recover the amount from the insured. 5] I have given careful consideration to the submission. The question is whether the insured had committed a breach of the terms and conditions of the policy of insurance. The other question is whether the liability of deceased was required to be covered. 6] As far as the first aspect is concerned, it is not in dispute that the tanker was a milk carrying tanker. A case was made out by the first respondent that the deceased sat in the tanker along with his tin boxes of colour. However, the finding of the Tribunal is that the spot panchnama at exhibit 35 does not mention any goods such as boxes in the tanker. Apart from the fact that the tanker was used only for carrying milk and it was not the case of the first to third respondents that the deceased was the owner of the milk carried in the tanker, there is absolutely no evidence on record that to show that the deceased was travelling along with tin boxes of colour as alleged. Thus, the Tribunal was was right in not believing the evidence of first respondent on this aspect and coming to the conclusion that the deceased was simply a passenger in the tanker at the time of accident. In any event, the liability of the deceased was not covered by the policy of insurance and was not required to be covered under the statute. 7] In the circumstances, the Tribunal committed a gross error by holding the appellant liable to satisfy the award passed against the insured. 4 fa262-99.sxw Going by the findings recorded by the Tribunal, this is not a case where a direction can be issued to the appellant to pay the compensation and, thereafter, to recover the same from the insured. Hence, the appeal must succeed and I pass the following order:- (a) The impugned award is modified and it is directed that the claim stands dismissed as against the appellant. However, rest of the award is maintained. (b) Appeal is partly allowed in the above terms with no order as to the costs. (c) Appellant is permitted to withdraw the statutory amount of Rs.25,000/- with interest accrued thereon. [A.S.OKA, J]