JUDGMENT

H.P. Sandesh, J. - These two appeals are filed by the Insurance Company challenging the judgment and award dated 16.11.2009, passed in M.V.C.Nos.290/2004 and 291/2004, on the file of the Fast Track and MACT at Kundapara ('the Tribunal' for short) fastening the liability on the Insurance Company.

2. The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court.

3. The factual matrix of the case is that the claimants in both the claim petitions have stated that on 03.01.2004 at about 3.00 a.m., the claimant in M.V.C.No.290/2004 Imran Khan and one Vasudeva Veluskar, son of petitioner No.1 and sister of petitioner No.2 in M.V.C.No.291/2004, were traveling in Maruthi car bearing registration No.GA-01/S-2677 from Goa towards Dharmasthala. At that time, near Babu Bhandary's house near Maravanthe Village, Kundapura Taluk, the driver of the said vehicle drove the same in a rash and negligent manner and suddenly applied the break. As a result, the car was capsized. On account of the same, they sustained grievous injuries. Immediately they were shifted to Adarsha Hospital, Kundapura and after taking the first aid treatment therein they were shifted to KMC Hospital, Manipal. Vasudeva Veluskar died on 05.01.2004 in the said hospital. The other occupant Imran Khan took the treatment and spent money. Hence, the legal heirs of Vasudeva Veluskar and injured Imran Khan have filed the claim petitions seeking compensation.

4. In response to the claim petitions, notice was issued by the Tribunal. Respondent No.1 was placed exparte and respondent No.2 Insurance Company filed the written statement contending that petitioner in M.V.C.No.290/2004 and deceased in M.V.C.No.291/2004 were the gratuitous passengers in the vehicle and the owner of the said vehicle, i.e. respondent No.1 has violated the conditions of the insurance policy. Hence, the Insurance Company is not liable to pay the compensation.

5. The claimant in M.V.C.No.290/2004 in order to substantiate his claim examined himself as P.W.1 and got marked the documents at Exs.P.1 to 13. Wife of the deceased Vasudeva Veluskar in M.V.C.No.291/2004 examined herself as P.W.1 and got marked the documents at Exs.P.1 to 16. The respondents got examined two witnesses as R.Ws.1 and 2 and got marked the documents at Exs.R.1 to 4 in

6. The Tribunal after considering both oral and documentary evidence placed on record, by common judgment awarded a compensation of Rs.31,200/- in M.V.C.No.290/2004 and Rs.4,48,900/- in M.V.C.No.291/2004 with interest at the rate of 6% per annum from the date of petition till the date of realization. The Tribunal fastened the liability on the owner of the vehicle and directed the insurer to pay the compensation and recover the same from the insured.

7. Being aggrieved by the judgment and award of the Tribunal, the present two appeals are filed by the Insurance Company contending that the Tribunal was required to have noticed that law would not mandate coverage of risk of passengers in a private car more particularly when it is used for hire or reward. The insured has deliberately withheld the express conditions of the policy of insurance and provisions of the Motor Vehicles Act. Under these circumstances, there exists no liability on the part of the insurer to indemnify the risk of the occupants. The Tribunal was required to have noticed that when there exists no liability to pay the compensation, the question of pay and recovery would not arise for consideration.

8. The learned counsel appearing for the Insurance Company reiterated the grounds urged in the appeal memo and would submit that the occupants of the car, which was a private vehicle, was used for hire and reward and the answers elicited from the mouth of the witnesses is clear that the vehicle was taken for trip. Hence, the Insurance Company is not liable to pay and recover the compensation amount.

9. In support of his contentions, the