S.G. Shah, J.

Heard learned advocate Mr. Hemant S. Shah for the appellants, learned advocate Mr. Nabil Bloch for the respondents No.1.1 and 1.2 and learned advocate Mr. Nikunt Raval for respondent No.2. Perused the record.

2. The appellants have challenged the judgment and award dated 27.2.2013 in M.A.C. Misc. Application No.177 of 2007. Such application was preferred by present appellants as original claimants being legal heirs of victim of road accident, namely, Minaben alias Minakshiben Gaurishanker Shrimali being her husband and two minor children. It is undisputed fact that on 2.12.2007, when victim was travelling in Jeep No.GJ-1S-9735, the Jeep has turned turtle because of rash and negligent driving of its driver and in such incident, the victim has received fatal injuries. The claim petition was preferred against owner of the vehicle being opponent No.1 and Insurance Company of such vehicle being opponent No.2. After allowing all the parties to adduce their evidence and after considering the available evidence on record, though the Tribunal has come to the conclusion that the claimants are entitled to the compensation of Rs. 4,41,500/-, thereby awarded such amount by such impugned award with 7.5% interest, the Tribunal has exonerated the Insurance Company from its liability to pay compensation to the claimants on the ground that victim was travelling in a vehicle for hire and reward and therefore, Insurance Company cannot be held liable to pay compensation when vehicle is a private vehicle, wherein policy does not cover the risk of person carrying for hire and reward. Being aggrieved by such determination and thereby, exonerating the liability of the Insurance Company, the claimants/appellants have preferred this appeal.

3. I have heard the rival contentions and perused the record and proceedings. So far as quantum of compensation is concerned, I do not see any reason to interfere with it at this stage considering the fact that the Tribunal has taken care of available evidence before it in determining quantum of compensation that may be awarded to the claimants for the death of victim - Minaxiben, who was aged about 27 years only. It cannot be ignored that the claim application is preferred under Section 163A of the Motor Vehicles Act ('MV Act', for short) and therefore, on different conventional heads, the award is only Rs. 9,500/-.

4. However, the main issue in the appeal is with reference to the liability of the Insurance Company to indemnify the owner by making payment of compensation awarded by the Tribunal as per the award. Surprisingly, the Tribunal has while exonerating the liability of Insurance Company, when discussed the issue in paragraphs 17 and 18, made contrary statements. In paragraph 17, it is observed by the Tribunal that "It is established from the documentary evidence likewise complaint, which is filed by the applicant No.1, that in the jeep car there were more than 15 passengers. In this circumstance, it can be said that the deceased was travelling as a gratuitous passenger and there is breach of terms and conditions of the policy". Unfortunately, Tribunal has failed to realise that there is no such condition disclosed in policy document, copy of which is produced at Exh.25 before it. However, in paragraph 18, the Tribunal has recorded a different version when it is stated that "Moreover, if we perused the policy of the jeep car, which was involved in the accident, at Exh.25, it is private car and as per terms No.A, which is regarding limitations as to use, the vehicle cannot be used for hire or reward." Therefore, while holding that Insurance Company is not liable to pay compensation, the Tribunal has considered that there is breach of terms and conditions of the policy, as a passenger car was carrying passengers for hire or reward. Unfortunately, the Tribunal has come to such conclusion i.e. travelling of victim in a vehicle by paying some fare without having any evidence to that effect on rec