JUDGMENT :

VIBHA KANKANWADI, J.

1. Present appeal has been filed by original respondent No. 2-insurance company challenging the Judgment and Award passed by learned Member, Motor Accident Claims Tribunal, Latur in M.A.C.P. No. 197/2012 dated 28.08.2017, whereby the learned Member allowed the petition for compensation against the present appellant and had also passed the order of pay and recover against the respondent No. 2.

2. Present respondent Nos. 1 to 3 are the original claimants who are the wife and sons of deceased Suryakant Pandurang Nikam aged 50. Suryakant was travelling with his friends in Tata Sumo jeep bearing No. MH-23/E-3762 on 15.04.2015 after attending marriage ceremony at village Padoli. They were returning to Pokhri via Tandulja-Ambajogai road. When they reached near Amba Sakhar Karkhana petrol pump at about 4.00 p.m. at that time the respondent No. 2, who was driving the said vehicle rashly and negligently, lost control and the vehicle got skid. It hit to the railing of a bridge and turn turtle. The passengers travelling from the said vehicle including deceased received serious injuries. They were taken to Ashwini Accident Hospital, Latur. Suryakant was hospitalized for a period of 17 days, then shifted to Yashwantrao Chavan Medical College and Hospital, Latur, then again to Civil Hospital, Latur, but ultimately he succumbed to the injuries. Therefore, the claimants were claiming compensation of Rs. 7,50,000/-.

3. The respondent No. 1 is the driver-cum-owner of the offending vehicle. He, by filing written statement, denied the allegation that he was rash or negligent. According to him, some molasses was spread over the road, because of it his vehicle got skid and he went out of control. It is stated that he was not responsible for the accident and therefore, not liable to pay compensation.

4. Respondent No. 2-insurance company admitted that the vehicle driven and owned by respondent No. 1 was insured with it on the date of accident. However, the other averments in the petition have been denied. Age, occupation and income of the deceased has been denied. It was stated that respondent No. 1 was carrying passenger on hire and therefore, there was willful fundamental breach of the policy. Insurance company is not liable to pay compensation to the petitioners.

5. Taking into consideration the rival contentions, issues came to be framed. The claimants adduced oral as well as documentary evidence. Respondent No. 2-insurance company filed documentary evidence in the form of certified copy of the charge sheet. After taking into consideration the evidence on record and hearing both sides, the learned Tribunal has come to the conclusion that Suryakant expired in vehicular accident, that had taken place on 15.04.2012, due to the negligence on the part of respondent No. 1. Insurance company has proved that there is breach of terms of policy. Taking into consideration the other evidence on record, compensation of Rs. 7,79,800/- has been awarded together with interest. The said amount of compensation has been directed to be paid by the insurance company, first and then liberty was granted to recover the said amount from respondent No. 1 to the insurance company. The insurance company is challenging the order of pay and recover in this case.

6. Heard learned Advocate Mr. S.G. Chapalgaonkar for appellant, learned Advocate Mr. R.S. Shinde for respondent Nos. 1 to 3 and learned Advocate Mr. V.V. Bhavthankar for respondent No. 4. It can be seen that the original claimants have not filed any appeal challenging the quantum of compensation. So also, the respondent No. 4 driver-cum- owner has also not filed any appeal challenging the findings, which have been given against him. Under such circumstance, the scope of the appeal is limited. Taking into consideration the limited scope, following points arise for determination. Findings and reasons for the same are as follows:

Whether the learned Member, Motor Accident Claims Tribunal was justi