A.S.CHANDURKAR, J.

1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, the said Act) has been preferred by the claimants challenging the judgment of the Claims Tribunal in proceedings under Section 166 of the said Act whereby they have been held entitled to receive compensation of Rs. 1,53,000/- from the driver of the offending vehicle after exonerating the insurer of the vehicle.

2. The facts in brief are that the son of the claimants Manoj was doing the business of purchase of goats and sale of meat. On 30/11/1998 said Manoj boarded a jeep which was owned by respondent No.1 herein and was insured with the respondent No.3. Said vehicle was being driven by respondent No.2. The jeep met with an accident and turned turtle resulting in fatal injuries to Manoj. Hence compensation of Rs. 3,50,000/- was sought under provisions of Section 166 of the said Act. In the written statement filed by the owner of the vehicle, it was pleaded that the driver of the vehicle had been specifically instructed not to carry passengers or permit any goods to be transported. In breach of those instructions the driver had carried passengers. Hence no liability could be saddled on the owner. The driver of the vehicle remained ex-parte. The Insurance Company in its written statement pleaded that the vehicle insured was registered as a private vehicle and had a sitting capacity of 9 + 1. Transportation of animals and excess passengers was not permissible under the policy. It was thus pleaded that the Insurance Company was not liable to pay the compensation.

3. Before the Claims Tribunal the parties led evidence. The claimant No.1 examined herself and the owner of the vehicle also entered the witness box. After considering that evidence on record the Claims Tribunal held that the driver of the vehicle in breach of specific instructions issued by the owner of the vehicle had carried excess passengers as well as animals therein. Since this act of the driver was beyond the scope of employment of the driver, the owner was not liable for the act of the driver. The owner of the vehicle and consequently the Insurance Company were exonerated. Compensation of Rs. 1,63,000/- was directed to be paid by the driver of the vehicle. Being aggrieved the claimants have filed the present appeal.

4. Shri Madhur Deo, learned counsel for the appellants submitted that the Claims Tribunal erred in exonerating the owner as well as the Insurance Company from satisfying the liability. There was no breach of policy and the owner was vicariously liable for the act of the driver. He submitted that the accident took place during the course of employment of said driver. The driver was authorised to drive the vehicle and merely because some excess passengers were carried in the vehicle, the same would not result in holding that the owner of the vehicle was not vicariously liable. Since the jeep was being driven for the business of the owner he was vicariously liable. Any excess act done by the driver while carrying out instructions of the owner would not be sufficient to exonerate the owner. For said purpose the learned counsel placed reliance on the decisions in Sitaram Motilal Kalal vs. Santanuprasad Jaishanker Bhatt, AIR 1966 SC 1697, Pushpabai Parshottam Udeshi and ors. vs. Ranjit Ginning and Pressing Co. Pvt. Ltd. And anr., AIR 1977 SC 1735, State of Maharashtra and ors. vs. Kanchanmala Vijaysing Shirke and ors., AIR 1995 SC 2499, Maimuna Begum wd/o Abdul Razzaque and ors. vs. Taju s/o Ahmed Khan and ors., (1989) MhLJ 352, Inderjeet Singh and Co. vs. Kamal Prakash Pawar and ors., (1988) MhLJ 863, Jankibai Laxman Dhoke and ors. vs. Ramesh Laxmanrao Uike and ors., (2004) 5 MhLJ 437 and Pirthi Singh and anr. vs. Binda Ram and ors., (1987) AIR(P&H) 56.

It was then submitted that even if there was a breach of policy the same was not so fundamental so as to exonerate the Insurance Company. Under said policy nine passengers besides the driver were permitted to