The main legal point established in the judgment is the application of the principle of 'pay and recover' in specific circumstances and the exercise of plenary powers under article 142 of the Constitution of India.

JUDGMENT

R. G. avachat, J. - This is an Insurance Company's appeal, taking exception to a judgment and award dated 12/2/2019, passed by Motor accident Claims Tribunal (Tribunal), Nandurbar in Motor accident Claim Petition (MaCP) No.206/2014. The challenge herein is mainly to the direction to the appellant Insurance Company to pay respondents/ claimants the amount of compensation granted under the impugned award and then recover the same from the owner of the vehicle involved in the accident (respondent No.4).

2. Facts giving rise to the present appeal are as follows :-

a goods carriage truck bearing Registration No.GJ-16/V-3312 met with the accident at 10.30 p.m. on 24/2/2014. Deceased Bhimsing was travelling in the ill-fated truck. The accident took place since the truck hit a roadside stone, whereby the deceased sitting on the back side plank of the truck fell out and died of the injuries suffered thereby. His widow and two children (respondents No.1 to 3), therefore, preferred the petition for compensation. The Tribunal awarded compensation amounting to Rs.2,59,000/- with interest thereon. Since it was a goods carriage and risk of passengers travelling therein had not been covered under the policy of insurance, the Tribunal was pleased to direct the appellant Insurance Company to pay first and then recover the amount of compensation from the respondent No.4, owner of the truck.

3. Heard. The learned counsel for the appellant Insurance Company would submit that, the claimants (respondents No.1 to 3) had relied on First Information Report and the related papers of the accident. These documents unequivocally make out a case of the deceased having been travelling as paid passenger in a goods carriage. The policy of insurance granted by the appellant Insurance Company was in the nature of 'act only Policy'. The deceased was neither an employee of the owner of the vehicle nor was he owner of the goods, carried in the truck, or authorised representative of such owner. as such, the appellant Insurance Company did not have liability to pay any compensation. The judgments of the Supreme Court relied on by the Tribunal for directing the appellant Insurance Company to pay the amount of compensation first and then recover were passed in exercise of powers under article 142 of the Constitution of India. The Tribunal did not have jurisdiction to pass such an order. The learned counsel has relied on a number of authorities and ultimately urged for setting aside the impugned award.

4. The learned counsel for the respondents No.1 to 3 claimants would, on the other hand, submit that, there are very many judgments of the apex Court and the High Courts as well directing Insurance Company to pay compensation in such cases first and then recover the same from the vehicle owners. The learned counsel would submit that, the deceased was a very poor person. He is survived by his widow and two children. The amount of compensation is not more than Rs.2,60,000/-. He, therefore, urged for dismissal of the appeal in the given facts and circumstances of the case.

5. Considered the submissions advanced. Perused the impugned judgment and award. Gone through the evidence relied on. Perused the authorities relied on.

admittedly, the deceased was travelling in a goods carriage truck No.GJ-16/V-3312. There is nothing in the evidence to suggest that he was carrying with him goods of his own or that of his employer, if any, nor was he an employee of the owner of the truck. In short, the deceased was travelling either paid or gratuitous passenger in a goods carriage. The insurance cover granted by the appellant Insurance Company was in the nature of 'act only Policy'. as such, the risk of any person other than the driver of the truck travelling therein had not been covered. Necessarily, the appellant Insurance Company did not have either statutory or contractual liability to pay the amount of compensation awarded by the Tribunal.

6. Both the learned counsel have relied on