Insurance companies may be required to pay compensation even if the deceased was an unauthorized passenger, with the right to recover from the vehicle owner, reflecting the benevolent intent of the Motor Vehicles Act.

JUDGMENT :

Sandeep N. Bhatt, J.

1. This appeal is filed by the appellant-insurance company under Section 173 of the Motor Vehicles Act, 1988 (`MV Act' for short), being aggrieved and dissatisfied with the judgment and award dated 23.8.2005 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in MACP No.52 of 2000, whereby the claim petition of the claimants was partly allowed and the original opponents were ordered to pay the amount of compensation of Rs.10,82,000/- along with proportionate costs and interest thereon at the rate of 9% p.a. from the date of filing till realization.

2. The brief facts leading to filing of this appeal are such that the alleged incident occurred on 18.8.1999, when the deceased and his son had gone to Ahmedabad to sell groundnut seeds and when they were returning back to their native at Veraval in the truck no.GJ-1T-6899 on 17.9.1999 and when the truck reached nearby the bridge of Madhuvan river, at that time, driver of truck lost control over the steering resulting into falling down the entire truck below the bridge as a result of which, the deceased sustained grievous injuries and succumbed to the injuries for which the heirs and legal representatives of the deceased filed a Claim Case No.52 of 2000 before the MACT (Aux.), at Rajkot for compensation of Rs.15,00,000/-.

3. On issuance of notice, the appellant-insurance company appeared and resisted the claim petition by contending that the deceased was the illegal passenger in the offending vehicle, which was positively a goods vehicle, hence it stands exonerated from remitting the liability of compensation; that the driver of the offending truck was not holding a valid driving licence at the relevant time of accident and therefore, insured has committed breach of terms of policy which exonerated it from liability of compensation; that the age and income of the deceased including dependency of the present claimants was challenged and hence, prayed to dismiss the claim petition, however, the learned Tribunal held both the opponents liable and passed the impugned award, which is challenged by the appellant- insurance company by way of filing this petition.

4. Heard learned advocate Mr.Shelat for the appellant and learned advocate Mr.Mehta for opponent nos.1 to 6 and Mr.Bhalodi for opponent no.7.

4.1. Learned advocate Mr.Shelat for the appellant has submitted that the learned Tribunal has erred in not taking into consideration that in the cross-examination of the claimant no.1, he has admitted that he had no documentary evidence to substantiate the said monthly earning and inspite of the fact on record, the Tribunal has taken the prospective income of deceased at Rs.6,000/- per month; that the learned Tribunal has erred in not considering the fact that the claimant was travelling as unauthorized passenger and is not entitled to any compensation as such passengers in a goods vehicle are not covered under the policy; that the learned Tribunal has deducted only 1/3rd instead of 2/3rd amount from the average prospective income of the deceased. He submitted that the vehicle in which the deceased was travelling was a goods vehicle and the deceased was an unauthorized passenger in the same; that the driver of the offending truck was not holding a valid driving licence at the relevant time of accident and therefore, when the insured has committed the breach of the policy, the appellant-insurance company should have been exonerated from the liability of paying the amount of compensation and at the most, the order of `pay and recover' should have been passed in this case.

4.2 Additionally, learned advocate Mr.Shelat has submitted that the learned Tribunal ought to have granted the compensation as follows: Income of Rs.4208/- and adding prospective at the rate of 10% which would come to Rs.420, the income would be Rs.4628/-, deducting 1/4th personal expenses, the amount which could be awarded would be Rs.3471/- per month, multiplying it with 12, it would be Rs.4