The insurance company is liable to pay compensation to claimants-appellants if the deceased was travelling as a gratuitous passenger, and the company can then recover the same from the driver and owner of the vehicle.

JUDGMENT

1. Instant appeal has been preferred by the claimants-appellants against the impugned judgment and award dated 27.07.2006 passed by the Court of Motor Accident Claims Tribunal, Bandikui, Rajasthan (hereinafter referred to as ’the Tribunal’) in Motor Claim Case No.81/2006 by which claim petition filed by the claimants-appellants was allowed and the respondentinsurance Company has been exonerated and the respondent Nos. 1 & 2 (driver & owner) of the vehicle have been directed to pay the compensation of Rs. 4,14,600/- to the claimants-appellants.

2. Learned counsel for the claimants-appellants submits that while deciding the issue No.3, the Tribunal has recorded an erroneous finding that the deceased was travelling in vehicle in the capacity of a passenger. Counsel further submits that no evidence was led on behalf of the respondent-insurance Company that there was any breach of policy or that the deceased was travelling in the vehicle in the capacity of gratuitous passenger. Counsel submits that even if this fact is treated as it is, then also the direction could have been issued by the Tribunal to the respondent-insurance Company to first pay the amount of compensation to the claimants-appellants and then recover the same from the driver and owner of the offending vehicle.

3. In support of his contention, learned counsel has placed reliance on the judgment of the Hon’ble Apex Court in the case of Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors., reported in 2017 (1) WLC (SC) Civil 488. Counsel submits that in view of the submissions made here-in-above, the findings recorded by the learned Tribunal on issue No.3 may be modified and directions may be issued to the respondent-insurance Company to pay the amount of compensation to the claimants-appellants and then recover the same from the driver and owner of the offending vehicle.

4. None has put in appearance on behalf of the respondent Nos. 1 & 2 (driver and owner) of the vehicle in spite of service of notices.

5. On the other hand, learned counsel for the respondentinsurance Company opposed the arguments raised by the counsel for the appellants-claimants and submits that the vehicle in question was insured for private use only but the deceased was travelling in the vehicle in the capacity of a gratuitous passenger. Hence, there was a breach of policy and the Tribunal has not committed any error while deciding issue No.3, in favour of the respondent-insurance Company and in exonerating them. Counsel for the respondent-insurance Company is not in a position to controvert the issue decided by the Hon’ble Apex Court in the case of Manuara Khaturn (supra).

6. Heard the rival submissions and perused the record.

7. This fact is not in dispute that the accident has occurred on 12.06.2002 when the deceased was travelling in a Jeep bearing No.RJ-25-C-0135. This fact is also not in dispute that the accident occurred with the said vehicle in which the deceased sustained certain injuries and died.

8. The only question which remains before this Court is that whether the Tribunal has committed an error while deciding issue No.3 in exonerating the respondent-insurance Company from its liability to make the payment of compensation to the claimants- appellants. It was the case of the Insurance Company before the Tribunal that the vehicle in question was insured for private use and the deceased was travelling in the vehicle in the capacity of a passenger. When a detailed cross-examination was done with the witness AW-2, he has not stated a single word that any amount of fare was paid to the driver of the vehicle. Though this fact has come on record that he was not acquainted with the driver of the vehicle and only on the basis of this fact, the Tribunal has decided issue No.3 in favour of the respondent-insurance Company. The Hon’ble Apex Court in the case of Manuara Khatun (supra) has dealt with an identical issue in para Nos. 16 & 18 to 23 as under:-

"16. This question also fell for consider