The insurer, respondent No.2 before the Court below, prefers this appeal, assailing the judgment of the II Additional District Judge, Adilabad in OP.No.783 of 2003 dated 11.05.2006 offended by the order made to it, to pay the compensation and to recover the same from the insured.

2. The issue involved in this appeal lies in a very narrow campus, because, the learned counsel for the claimants/respondents does not dispute that the deceased was a gratuitous passenger and since the only ground that was stressed by the counsel for the appellant is with regard to the liability of the appellant in respect of a gratuitous passenger. Since, it is admitted that the deceased is a gratuitous passenger, the question that is left for further decision is whether the principle of pay and recover could be applied in this case. The facts need a brief narration in order to understand the nature of the travel of the claimant in the crime vehicle.

The crime vehicle is a jeep, which was hired by the friends of the claimant; he was travelling in the said vehicle when he was picked up by it on the way to its destination and the vehicle met with the accident, involving another lorry. But the claimant preferred to attribute negligence only to the driver of the jeep in which he was travelling. It is how the nature of his travel becomes relevant, for deciding the liability of the insurer.

3. On the basis of the arguments that were extended by the counsel for the appellant, the aspects that have to be considered fall under the following four points:

1. Whether the hire of the vehicle is permitted by the policy conditions;

2. If not, whether the injured or the deceased travelling in a hired vehicle can be termed as gratuitous passengers;

3. If yes, whether they should be deprived of the benefit of compensation from the insurer and

4. If yes, whether, at least, the order to pay the amount by the insurer and to recover the said amount from the insured can be made.

POINT No.1:

4. The policy is an act policy and the same is not disputed. The conditions of the policy stipulate that the insurance company shall not be liable if the vehicle is used otherwise than in accordance with the limitations as to use. The limitations as to use include hire or reward, apart from others. Hence, it can be quickly concluded, on the basis of the terms of the policy, that the hire of the vehicle is not permitted by the policy conditions.

POINT No.2:

5. The counsel for the appellant takes help of the decision of the Supreme Court in UNITED INSURANCE CO. LTD. v. TILAK SINGH, (2006) 4 SCC 404 to draw support to his contention that the claimant is a gratuitous passenger, though he was travelling in a jeep which is not a goods vehicle. The question that came up for consideration before the Supreme Court is with regard to the liability of the insurer in respect of the death of or injury to a gratuitous passenger carried in a private vehicle. The vehicle involved in this case is not a goods vehicle. But, by expanding the principle laid by the Supreme Court in NEW INDIA ASSURANCE CO. LTD. v. ASHA RANI, (2003) 2 SCC 223, that a passenger travelling in a goods vehicle is a gratuitous passenger, in TILAK SINGH's case (1 supra), the supreme court held that although the observations in ASHA RANI's case (2 supra) were in connection with carrying passengers in goods vehicle, the same would apply with equal force, to gratuitous passenger travelling in any other vehicle. Accordingly, the claimant, from the nature of his travel in the vehicle, as admitted by him, while deposing as P.W.1, nevertheless stands to be a gratuitous passenger. The vehicle is a hired vehicle, not by him but by his friends. He is not a fare paid passenger, as he did not pay any fare towards his travel in the said vehicle. Hence his nature of travel categorizes him as a gratuitous passenger.

POINT No.3:

6. Whether a gratuitous passenger should be deprived of compensation from the insurer, has been a vexed question, which painf