JUDGMENT :

BIRENDRA KUMAR, J.

1. A brief background leading to these appeals is that on 14.9.2001, certain people were travelling on a utility vehicle bearing Registration No. RJ-19-1-G1355. Near Village Devi Koat, due to rash and negligent driving, the utility vehicle dashed against a big stone with its rear wheel and the tyre burst. Consequently, the vehicle turned turtle and the people travelling therein sustained injuries. One Kachhu Ram, aged about 60 years, by profession a Tailor also sustained injury and died. The dependents of Kachhu Ram filed Motor Accident Claims Case No. 10/2002 before Motor Accident Claims Tribunal, Jailsalmer. Injured Mukesh filed Motor Accident Claim Case No. 8/2002. The learned Tribunal made award of Rs. 1,40,000/- along with 9% interest in favour of dependents of Kachhu Ram and award of Rs. 14,000/- for injuries to Mukesh. It is relevant to mention here that some other claim petitions were also decided by the impugned judgment dated 2.12.2003, as they were also related to the injureds travelling on the same utility vehicle.

2. However, the Tribunal found that since a goods vehicle was carrying passengers, it violated the terms of the policy. As such, the insurer was held not liable to pay the compensation rather, owner of the vehicle was held liable. The owner of the vehicle in both the aforesaid claim cases have challenged, the aforesaid finding of the Tribunal that insurer is not liable, in these appeals.

3. Learned counsel for the appellants contends that the accident took place due to bursting of tyres of the vehicle in question and not due to negligence, hence the Tribunal wrongly exonerated the insurer of the liability. Next contention is that owner had no knowledge that the driver who had gone to load goods in the vehicle was carrying passengers on that, therefore, owner should have been exonerated. Moreover, under Section 150 of the Motor Vehicles Act, the insurer is bound to satisfy the award in favour of a third party for the injuries or death sustained during the accident.

4. The claimants respondents were noticed but they did not contest these appeals nor they have filed any separate appeals.

5. Learned counsel for the United India Insurance Company contends that there is overwhelming evidence on the record that the vehicle involved in the accident was a goods carrying vehicle and several passengers were being carried on the same for hire and reward, therefore, there is direct violation of the terms of policy, hence the Tribunal has correctly held that insurer is not liable. There is consistent judicial pronouncement that when there is violation of terms of the policy, the Insurance Company is not liable to pay the compensation. Reliance has been placed on judgment in New India Assurance Co. Ltd. vs. Vedwati and Others, AIR 2007 SC 1334.

6. No doubt the claimants witnesses Chhotmal witness No. 1, Sagat Mal witness No. 3 and witness No. 2 Kunti Devi have admitted that the utility vehicle was being used as a Taxi. Chhotmal had stated that he got boarded his father on the vehicle after paying Rs. 10 to the driver as fare. The number of claim petitions decided by the impugned judgment would reveal that number of passengers on the vehicle were more than the capacity of 4 plus driver mentioned in the Registration Certificate as well as insurance policy. The vehicle was to carry goods to the tune of 2750 Kgs. Instead of goods, passengers were being carried therein, therefore, there is apparent violation of terms of the policy by the appellants. Consequently, the impugned award cannot be interfered with on the prayer of the appellant.

However, the appellate court has power under O.41 R.33 CPC to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or