S. Talapatra, J.

1. Heard Mr. S. Dutta, learned counsel appearing for the appellant as well as Mr. S.K. Goswami, learned counsel for the respondent No.1. There is no representation from the other respondents despite due notice from this Court. This is an appeal by the New India Assurance Co. Ltd. under Section 173 of the Motor Vehicle Act, 1988 against judgment and award dated 23.07.2004 as passed by the Motor Accident Claims Tribunal, Nagaon in MAC Case No. 12 of 1998.

2. The findings as returned by the Tribunal as regard the accident that occurred on 04.07.1997, involvement of the offending vehicle bearing registration No. AS-01-D 3813 (Maruti Van) and its rash and negligent driving as well as injuries as received in the accident by the claimant respondent No. 1 are not in dispute by either of the parties or in the appeal and as such those findings stand affirmed by this Court. Hence, no further appraisal of those findings is required.

3. The question that has been projected in the appeal is that the appellant has no liability in paying the award as directed by the insurance company in as much as the offending vehicle was not at any point of time insured by the appellant. Mr. Dutta, learned counsel severely criticized the finding of the leaned trial Court wherein the Tribunal held that:

9. The learned counsel for the O.P. Insurance Company has argued that the vehicle was covered by Act policy covering the risks of the third party only. The occupants of the vehicle were not covered by Act Policy. The claimant's case is that the vehicle was not taken on hire or for reward. The claimant has examined her father D.N. Borthakur, who arranged the vehicle. He has stated that the owner of the vehicle is his friend and requested him to provide the vehicle for carrying the claimant and her family to Jorhat. The Insurance Company examined D.W.3, who is the owner of P.B. Maruti Engineering workshop. He has stated that the vehicle belonged to one Abdul Hussain. The vehicle was repaired at his garage. The witness is not aware as to the arrangement of the vehicle. It is crystal clear that the claimant was gratuitous passenger of the offending vehicle. The learned counsel has argued that liability of the occupants of the Maruti Van were not covered under the Act policy. In this connection the learned counsel has referred to a decision of the Hon'ble Supreme court reported in 2001 ACJ 2059. The Apex Court has held that the third party policy does not cover liability to gratuitous passengers, who are not carried for hire or for reward. D.W. 1, the Asstt. Administrative Officer of the O.P. Insurance Company has stated that the policy was an Act policy. Ext. A is the said policy. He has stated that the Act policy is a statutory policy. It covers only third party risk except the occupants of the insured vehicle. He has further stated t hat the vehicle in question was a private car. Policy does not cover the use of the vehicle for hire or for reward etc. Premium paid at Rs. 168/- for third party risk. No extra premium was also paid by the insured. In view of the decision of the Hon'ble Supreme Court (supra), we come to the conclusion that a gratuitous passenger travelling in a private vehicle is not entitled to insurance coverage if the policy is taken only to cover the risk compulsorily coverable under the Statute.

10. The accident had happened. The Claimant was injured. The vehicle was not used for hire or for reward. The claimants is a gratuitous passenger of the offending vehicle. The vehicle is covered by Act Policy only. The insurer is not liable to indemnify the insured, but the owner of the vehicle would be liable to compensate the injured.

11. In a very recent decision in M/s. National Insurance Co. Ltd. Vs. Baljit Kour and others, 2004 (1) TAC 366, the Hon'ble Supreme Court has observed:

We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in f