SHRI RAJENDRA CHANDRA SINGH SAMANT, J. (CAV)

1. This batch of miscellaneous appeals arise out of different claim petitions preferred by claimants connected with motor accident caused by use of one vehicle Truck No. M.P.24 C 2187. All the appeals are being decided by this common judgment.

2. The facts of the case admittedly are these, that the registered owner of the Truck bearing registration No. M.P.24 C 2187 was respondent No.2 and respondent No.1 was the driver employed by him. The appellant was arrayed in all the claim petitions as non-applicant Insurer and the remaining respondents in each case are the claimants. The Truck No. M.P.24 C 2187 was being plied on 09/11/2001, driven by respondent No. 1 met with an accident near Sendur Bapa under the jurisdiction of Police Station, Sakoli, District Bhandara (Maharashtra). It was alleged that the cause of accident was rash and negligent act of respondent No.1. The Truck was carrying passengers, out of them 12 persons namely Koushal, Vinod, Suko Bai, Budhara Bai, Janki Bai, Sewaram, Pemin Bai, Kunjalram, Udyan Singh, Pritram, Naresh and Keshav expired as a result of this road accident. 12 persons namely Bisouharam, Ganeshram, Chhabilal, Siddharth, Dwarika Ram, Rishiram, Speshwari Bai, Komal Ram, Dhaneshwari Bai, Chandar Lal, Durga Bai and Narbad Bai were also injured in this road accident. 24 different claim petitions were presented before the Tribunal below claiming compensation as dependents of deceased and in capacity of injured in the accident.

3. All the claim petitions were heard and decided by the Tribunal below by a common order dated 30/08/2003, deciding the issues framed. It was held that all the deceased persons died in this accident and all the injured persons named as well got injured in the same accident because of negligent or rash driving by respondent No.1. It was held that the policy conditions of Insurance policy were breached by using the goods carriage vehicle as a passenger vehicle. The entitlement of award, liability and quantum was decided. Finally, the Tribunal below held that despite the breach of policy condition, the appellant-insurance company was under the liability to pay compensation to all the claimants and realize the same from the owner of the vehicle. On the basis of this finding it was ordered that the amount of claim as decided in each of the claim petitions was to be paid by the appellant and recovered from the owner of the vehicle respondent No.2.

4. The common question raised in each appeal is that the finding of the Tribunal below ordered despite breach of policy, that the appellant was under the liability to pay compensation to all the claimants and to recover thereafter from the registered owner is an erroneous and illegal finding. In appeal memo, one more ground was alleged that no issue was framed on the point that whether the driver of the vehicle was in possession of legal and effective driving license at the time of accident or not? On these grounds it is prayed that the order in impugned award against the appellant be set-aside.

5. Counsel for the appellant has in submission given up the ground in appeal regarding non-framing of issue on the point of availability of legal and effective driving license in favour of respondent No.1. The only contention made and submitted is that the Tribunal below was not competent to order for 'pay and recover' the awarded amount in each case. Tribunal below has very clearly given this finding that the vehicle concerned was plied in breach of policy condition. So far as for the principle laid down regarding 'pay and recover' is certainly not applicable in case of passenger travelling in goods vehicle. No premium was paid for the passengers travelling in the goods vehicle. Hence there had been no contract of insurance for the same. On these grounds, appellant is entitled to be exonerated from the liability as saddled upon by the trial Court.

6. On behalf of the claimants, it is submitted that th