Though these two First Appeals were heard earlier , the judgment was reserved as in some other appeals, learned counsel appearing for the parties were desirous of making further submissions on the point involved in these appeals. The said appeals were either not prosecuted or were settled. Therefore, I am proceeding to deliver the judgment.

2. These two appeals were taken up together as they arise of the same accident. One Kalabai Vithal Lahane ( the 1 st Respondent in F.A. No.365 of 1997 ) filed a Claim Petition under Section 110A of the Motor Vehicles Act, 1939 ( hereinafter referred to as "the said Act of 1939") on account of death of one Vithal in a motor accident on 8 th September, 1985. The said Vithal was the husband of the 1st Respondent.

3. One Sindhubai Kondiram Darwante ( the 1st Respondent in F.A. No.364 of 1997 ) filed a Claim Petition under Section 110A of the said Act of 1939 on account of death of one Kondiram who was her husband.

4. The accident occurred on 8th September, 1985. The deceased Vithal boarded the truck No.MHV5936 for coming to Talavade. The deceased Kondiram boarded the said truck at Loni Khurd for going Babultel. The case made out in the Claim Petition is that they had paid fare charges to the 3rd Respondent in both the Appeals who was at the relevant time driver of the said truck. The 2nd Respondent in both the appeals was the owner of the truck. The allegation in the claim petition is that the driver was driving the truck in a rash and negligent manner .As a result, at a distance of about 9 kms from Nandgaon, the truck turned turtle. There were bundles of steel plates in the said truck. The bundles were kept loose and as a result of the impact, the said bundles were thrown on the road and the deceased Vithal as well as the deceased Kondiram were crushed under the said bundles and died on the spot.

5. The owner and the driver of the truck did not contest the claim petitions. The contest was made by the Appellant who was admittedly the insurer of the truck on the date of accident. The contention raised by the AppellantInsurer was that the vehicle was a goods carrier having Public Carrier Permit. In such a vehicle, the passengers cannot be carried and therefore, there was a breach of terms and conditions of the policy on the part of the owner and the truck.

6. The Tribunal found that the accident occurred due to rash and negligent driving of the truck by the 3rd Respondent. In the claim Petition filed by Kalabai, the compensation of Rs.1,00,000/ with interest thereon at the rate of 12% per annum was granted under the impugned award. The same compensation was granted to the other claimant Sindhubai. The Tribunal held that even the law prohibits carrying of passengers in a goods vehicle and the terms and conditions of the policy prohibit carrying of passengers in such vehicle. However , the Tribunal proceeded to pass a joint and several award against the Appellant the owner and the driver of the truck.

7. The learned counsel appearing for the Appellantinsurer relied upon a decision of the Apex Court in the case of Mallawwa & Others v. Oriental Insurance Company Limited & Others [(1999) ACJ 1 ]. He submitted that the Apex Court held that that the Insurance Company is not liable to pay compensation on account of death and injuries sustained by a person travelling in a goods vehicle who had paid fare or who was travelling gratuitously. He submitted that the same position of law has been reiterated in a decision of the Apex Court in the case of United India Insurance Company Limited v. A.N. Subbulakshmi & Others [(2008) 9 SCC 354].

8. The learned counsel appearing for the 1st Respondent supported the impugned judgment and awards. He submitted that even if the Court comes to a conclusion that there was a breach of terms and conditions of the policy of insurance , the AppellantInsurer will have to pay compensation and will have to recover the same from the Insured. This Court had requested Mr.Mendon