S. Sujath, J.

This appeal is directed against the judgment and award dated 11th January 2010, passed by the II Additional Civil Judge (Sr.Dn.) and Additional MACT, Belgaum ("the Tribunal" for short) in MVC No. 2293/2003.

2. Briefly stated the facts are that the appellants were the claimants before the Tribunal. The claimants instituted the claim petition seeking compensation for the death of Shashikant Bharma Murashetti in the road traffic accident, which occurred on 14.06.2008 contending that the deceased met with road traffic accident while proceeding on the motorcycle bearing registration No. MH-03/AD-883 along with his friend as a pillion rider. It was alleged that the said accident occurred owing to the actionable negligence of the driver of the truck bearing registration No. HR-55/B-9905. The insurer contested the claim. The Tribunal after appreciating the evidence on record, fixed 50% of the contributory negligence on the part of the deceased and awarded total compensation of Rs. 2,28,500/-. Being aggrieved, the appellants are before this Court.

3. Heard Sri. H.M. Dharigond, learned counsel appearing for the appellants, Sri. S.N. Rajendra, learned counsel appearing for the respondent No. 1-owner and Sri. S.S. Joshi, learned counsel appearing for the respondent No. 2/Insurance Company.

4. It is evident that the deceased was riding the motorcycle as a pillion on the fateful day of the accident. It is the case of the respondent No. 2/Insurance Company that the appeal papers clearly reveals that the accident occurred due to the contributory negligence of the deceased i.e., for the triple riding of motorcycle. The Tribunal accepting the plea of the insurer, fixed the contributory negligence to the extent of 50% on the part of the deceased and the rider of the motorcycle for the accident in question. It is an admitted fact that the charge sheet was filed against the driver of the truck bearing registration No. HR-55/B-9905. The plea taken by the insurer is that, three adult passengers were travelling on the motorcycle, much against the seating capacity of the vehicle, which resulted in violation of the terms and conditions of the policy.

5. This issue was the subject matter of appeal before the Hon'ble Apex Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Officer Hassan reported in (1996) 4 Supreme Court Cases 647, it is held thus :

It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contribute to the causing of it is the poser, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a persons or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. In Sikand's case this Court paved the way towards reading down the contractual Clause by observing as follows :

"When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard u