1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.778 OF 1992 The New India Assurance Co. .. Appellant versus Mahejabi Gulamnabi Alandkar & Ors. .. Respondents Ms.Urmila Sanil for the appellant. Mr.P.M.Mengane for respondent Nos.5 and 6. CORAM : A.S.OKA, J. DATE : 19th December 2009. ORAL JUDGMENT: . Heard learned counsel appearing for the appellant. None appears for the respondents. The challenge in this appeal is to the judgment and award dated 14th October 1991 passed by the learned Member of the Motor Accidents Claims Tribunal. The 1st to 4th respondents are the claimants. The claimants are the legal representatives of the deceased Gulamnabi Alandkar. The 1st respondent is the widow of the deceased and 2nd to 4th respondents are the children of the deceased. The deceased was employed as a driver of truck No.MWC 4296. The 5th to 6th respondents are the owners and employers of the deceased. The truck in question was insured at the relevant time with the appellant. 2. The case made out by the 1st to 4th respondents is that the deceased was 2 driving the truck towards Mumbai from Solapur. When the truck came near Walchand Nagar, the tyre of the front wheel on the driver side burst. As a result, the truck lost its balance. The deceased sustained injuries and he succumbed to the injuries. The claim was not defended by the 5th and 6th respondents. The appellant filed written statement and contended that the deceased was an employee of the insured. The deceased was himself a tort-feasor and therefore the appellant was not liable to pay compensation. It was contended that at the time of the accident the deceased was carrying unauthorised passengers in the goods vehicle and therefore there was a breach of terms and conditions of the policy. 3. I have heard the learned counsel appearing for the appellant and learned counsel appearing for 5th to 6th respondents. The finding of the Tribunal is that the accident had taken place due to sudden brusting of the tyre of the truck. The finding of the Tribunal is that the 5th and 6th respondents were negligent as they had not taken care to replace the old tyres. The Tribunal came to the conclusion that the deceased himself was negligent as he had not taken precaution by replacing the tyres. 4. The 5th and 6th respondents are the insured of the truck. The finding of the Tribunal is that the deceased who was driving their truck was himself negligent and therefore the accident occurred and similarly 5 and 6th respondents have been held as negligent. There is no challenge to the said finding. 5. Therefore, there was no reason for the learned Member of the Tribunal to 3 hold the appellant liable to satisfy the award passed against the 5th and 6th respondents. The deceased cannot be said to be a third party. Apart from this, another finding of the Tribunal is the deceased was carrying passengers in a goods vehicle. Therefore, there was a breach of terms and conditions of the policy. 6. Therefore, the award as against the appellant will have to be quashed and set aside. 7. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and award is quashed and set aside as against the appellant. Therefore, Claim Application No.299 of 1986 stands dismissed as against the appellant. (b) Rest of the award is maintained. (c) Appeal is partly allowed in above terms. (d) If any amount is deposited by the appellant with this Court, the same shall be refunded to the appellant. (A.S.OKA,J)