( 1 ) HEARD Mr. Pathak, learned counsel, for the appellant, Mr. Kukdey, learned counsel, for respondent No. 2 and Mr. Sharma, learned counsel, for respondents 3 and 4 finally.

( 2 ) THIS appeal is against the Judgment and Award dated 9-12-2002 passed by the Motor Accident Claims Tribunal in Claim Petition No. 433 of 1996 whereby the Tribunal directed the respondent/owner including the Insurance company to pay an amount of compensation of Rs. 1,05,000/- with interest at 9% per annum from the date of petition i. e. 7-10-1993 till its realisation. The accident occurred on 9-10-1992. Narayan died in the accident arising out of the use of the motor vehicle - i. e. Tipper bearing registration No. MH-31/6526. Respondents no. 3 and 4 are the father and mother of the deceased who had filed claim petition under section 166 of the Motor Vehicles Act, 1988.

( 3 ) THE learned counsel for the appellant contended that the deceased was travelling in the aforesaid goods vehicle, i. e. Tipper truck on the date of the accident and, therefore, the Insurance Company would not be liable to pay compensation. In support of these submissions he relied on the decision of Apex court in National Insurance Co. Ltd. vs. Bommithi Subbhayamma, 2005 (2) t. A. C. 1 (SC) wherein it has been held that there is no statutory liability on owner of goods vehicle to get his vehicle insured for any passenger and the Insurance company is not statutorily liable for payment of compensation to gratuitous passengers travelling in goods vehicle. The learned counsel for the Insurance company therefore contended that it is only the owner of the motor vehicle involved in the accident who is liable to pay compensation since the deceased was admittedly travelling as a gratuitous passenger in the goods vehicle. He contended that whether the deceased was travelling as a passenger by paying fare is not of much relevance and when it is an admitted position that the deceased was travelling in the goods vehicle as a gratuitous passenger, the Insurance company would not be liable to pay compensation.

( 4 ) THE learned counsel for the respondent/claimant contended that in view of the decisions of Supreme Court in M/s National Insurance Co. Ltd. vs. Baljit kaur, 2004 (2) Mh. LJ. (SC) 372 = 2004 (3) SRJ 178 and in the case of National insurance Co. Ltd. vs. Challa Upendra Rao, 2005 (5) All MR (SC) 509, the insurance Company is not liable to satisfy the Award and then can recover it from the owner of the motor vehicle involved in the accident.

( 5 ) MR. Kukdey, learned counsel, for the respondent/owner of the respondent/owner of the vehicle contended that in view of the decision of the apex Court in National Insurance Co. Ltd. vs. Swaran Singh, 2004 (1) SCALE 180 the Insurance Company is liable to pay compensation because sub-section (1) of section 149 casts a liability upon the insurer to pay to the person entitled to the benefit of the decree as if he were the judgment-debtor and the said liability is subject to the provision of this section and that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy. Furthermore, the statute raises a legal fiction to the effect that for the said purpose the insurer would be deemed to be judgment debtor in respect of the liability of the insurer. Furthermore, the Insurance Company with a view to avoid its liabilities is not only required to show that the conditions laid down under section 149 (2) (a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured.

( 6 ) THIS Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. Two questions of law which arise in this appeal are - (i) whether the Insurance Company would be liable to pay compensation under the provisions of the Motor Vehicles Act if there is a death or bodily injury to the person travelling in the goods vehicle as a passenger in view of the larg

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