An insurer is liable to pay compensation to a third party even if the insured vehicle is being used for commercial purposes in violation of the insurance policy.

1. THIS order shall also govern the disposal of miscellaneous application No. 1652 of 2006 as both the appeals are arising out of one award dated 17th February, 2006 passed by 1st additional M. A. C. T., Khargone, in Claim case No. 6/05, whereby the claim petition filed by the appellant was allowed, and a sum of Rs. 3,26,300/- has been awarded.

2. IN miscellaneous application No. 1677/ 06 appellant is aggrieved by the inadequacy of the amount award and is also aggrieved by the direction of learned Tribunal whereby respondent No. 3 has been exonerated. In miscellaneous application No. 1652/06 appellants are respondent Nos. 1 and 2. The grievance of respondent Nos. 1 and 2 is also that the respondent No. 3 has wrongly been exonerated and the amount awarded is on higher side.

Short facts of the case are that the appellant Gorlibai filed a claim petition alleging that on 30th January, 2004 appellant was travelling in a Commander jeep at about 3:45 p. m., which was being driven by respondent no. 1 rashly and negligently, owned by respondent No. 2 and insu red with respondent no. 3. It was alleged that because of rash and negligent driving of respondent No. 1 the offending Jeep was turtle down, with the result appellant sustained grievous injuries in her leg, knee and on other parts of the body. Appellant was brought to District Hopsital, khargone, where appellant was hospitalized from 31st January, 2004 to 22nd September, 2004. It was alleged that since the accident occurred because of rash and negligent driving of respondent No. 1, therefore, claim petition be allowed and compensation be awarded.

3. THE claim petition was contested by respondent Nos. 1 and 2 and also by respondent no. 3 by filing separate written statement. The defence of the respondent No. 3 was that since the offending vehicle, which was registered as private vehicle, was being used for commercial purpose, therefore, in the facts and circumstances of the case respondent no. 3 be exonerated.

4. AFTERFRAMING of issues and recording of evidence learned Tribunal allowed the claim petition filed by the appellant and awarded a sum of Rs. 3,26,300/- and exonerated the respondent No. 3, against which both the appeals are filed.

Mr. Pankaj Sohani, learned Counsel for the appellant submits that appellant was hospitalized roughly for a period of 8 months. It is submitted that appellant sustained compound fracture in right leg and also crush injuries, which the result the leg of the appellant is of no use. It is submitted that learned tribunal assessed the amount of permanent disability on the basis of 100% loss of earning capacity. It is submitted that learned Tribunal awarded a sum of Rs. 3,26,300/- break-up of which is as under: rs. 2,88,000/- Towards permanent disability. Rs. 38. 300/- Towards medical expenses.

5. LEARNED Counsel for the appellant submitted that on number of heads no amount has been awarded and the income of the appellant assessed by the learned Tribunal is also on lower side as the accident is of the year 2004. So far as exoneration of respondent no. 3 is concerned, learned Counsel submits that appellant herself ha stated, that she was not fare paying passenger. Learned Counsel submits that learned Tribunal committed error in relying on the statement alleged to have been given by the appellant before the Police authority under Section 161 of Cr. P. C. and exonerated respondent No. 3, which is not permissible under the law.

6. MR. Sameer Verma, learned Counsel for the respondent Nos. 1 and 2 submits that the amount awarded by the learned Tribunal is already excessive and no case for enhancement is made out. So far as the exoneration of respondent No. 3 is concerned, learned Counsel submits that respondent No. 3 appointed investigator, who has also submitted investigation report in the office of respondent no. 3, but neither investigator was examined nor investigation report has been filed by the respondent No. 3 for the best reasons known to the