JUDGMENT :

1. The appellants/original claimants being aggrieved by the judgment and award dated 28.04.2008 passed by the Motor Accident Claims Tribunal, Osmanabad in Motor Accident Claim Petition No.173/2002, approached this Court under Section 173 of the Motor Vehicle Act.

2. The claimants contend that on 21.05.2002, the deceased Shamroa was proceeding in Jeep bearing Registration No.MH-25/3640, at that time a Truck bearing Registration No.ABT-2946 came from opposite direction. There was collision between two vehicles. The deceased suffered fatal injuries in the said accident. According to the claimants, the accident was reported to police. Crime No.177/2002 was registered against the Jeep driver for rash and negligent driving. The deceased was serving as teacher at Bharat Vidyalay, Makani, Tq. Umarga and getting monthly salary of Rs.12,011/-. The claimants were dependent on his income. As such, they are entitled for compensation from respondents i.e. owner and insurer of both the vehicles involved in this accident. The claim was contested by insurers of both the vehicles. The original respondent no.2/insurer of Truck filed written statement and pleaded that the Jeep driver was responsible for the accident. The insurer of Jeep/original respondent no.4 filed written statement and pleaded that Truck driver was responsible for the accident. By way of statutory defence, it is pleaded that the Jeep was carrying excess passengers. The driver of the Jeep was not authorized to drive the vehicle. Hence, there is breach of conditions of policy. It is accepted that the Jeep was insured under the Private Car Package Policy. However, occupants are not ‘third parties’, hence, insurer has no liability towards the death or injury to the occupants

3. The Tribunal framed issues based on pleadings of the parties. The claimant no.1 Bharatbai recorded her evidence at Exhibit-48. She relied upon the certified copy of the FIR at Exhibit-49. The spot panchanama is at Exhibit-50. The post-mortem report is at Exhibit-52. No evidence is recorded on behalf of the respondents. However, respondent no.4-insurer of Jeep placed on record the copy of the deposition of Jeep owner recorded in WCA No.21/2002. The Tribunal after hearing the parties concluded that accident occurred due to fault of Jeep driver. However, pleased to exonerate its insurer for the reason that excess passengers were carried and the occupants cannot be treated as third party. As such, there is breach of policy. The Tribunal assessed the entitlement of the claimants to the tune of Rs.10,13,520/- and passed Award only against respondent no.3/owner of the Jeep.

4. Mr. Ashtekar, learned Advocate appearing for the appellants submits that the Tribunal has arrived at erroneous conclusion regarding the breach of policy, when the insurer has failed to discharge its burden and prove the defence. He would further submit that the Tribunal failed to consider various heads for grant of compensation and passed inadequate award, which require to be enhanced.

5. Per contra, Mr. Kadethankar, learned Advocate appearing for respondent no.2 submits that the Tribunal has rightly recorded the finding of the negligence against the Jeep driver and dismissed claim against the owner and insurer of the Truck. The findings recorded by the Tribunal is just and proper and based on material on record. He would further point out that the present appeal is dismissed against the owner of the Truck for want of service of notice. Therefore, the issue of negligence of Truck driver would not germane for consideration in the present appeal.

6. Mr. Goyanka, learned Advocate appearing for respondent no.4/insurer of Jeep submits that the claimants have pleaded about the composite negligence of both the drivers. Similarly, the claimant no.1 in her deposition advanced similar case. The finding recorded by the Tribunal is inconsistent