JUDGEMENT

1. The appellant-Insurance Company has assailed the validity of award dated 30.07.2008 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter to be referred as the Tribunal), whereby a sum of Rs. 1,44,400/- has been awarded as compensation in favour of the claimant/respondent No.1, which as per the award, is to be paid by the appellant-Insurance Company with a right to recover the same from the owner i.e. respondent No. 2.

2. Before coming to the contentions raised in the appeal, it would be apt to have a brief background of the facts leading to the filing of this appeal. It appears that on 14.06.1999, respondent No. 1 boarded a truck bearing registration No. JK02E 5195 at Pull Doda. The vehicle in question suffered an accident due to rash and negligent driving of its driver, which resulted in injuries to five passengers travelling in the truck including respondent No. 1 herein.

3. It seems that as a result of the injuries, respondent No. 1 suffered permanent disability of 20% of his left lower limb. He filed a claim petition before the Tribunal impleading the appellant-Insurance Company and owner of the offending truck as respondents. The learned Tribunal after recording the evidence of the parties, awarded a sum of Rs. 1,44,400/- alongwith interest @ 7.5% per month in favour of respondent No. 1, injured. The Tribunal on the basis of the evidence led in the case also found that respondent No. 1, injured was travelling as a gratuitous passenger in the truck in question, as such, risk to his life was not covered under the terms of the policy of the insurance. However, the Tribunal directed that award shall be satisfied by the appellant-Insurance Company in the first instance and thereafter, the same shall be recoverable from the owner, respondent No. 2 herein.

4. Notice of this appeal was sent to the respondents. Despite having been duly served, nobody responded to the notice on their behalf. Accordingly, they were set ex parte.

5. The only ground urged by the appellant-Insurance Company in this appeal is that once the Tribunal found that risk to the life of injured was not covered under the terms of the policy, it was not open to it to pass a direction of pay and recover.

6. I have heard learned counsel for the appellant and perused record of the Tribunal.

7. The issue of pay and recover in the case of injuries suffered by a gratuitous passenger or even death of a gratuitous passenger has been a matter of discussion before the Supreme Court in a number of cases. It would be apt to refer to some of these judgments in order to understand the legal position of this aspect.

8. The concept of pay and recover has been discussed by the Supreme Court in the cases of National Insurance Co. Ltd. Vs. Swaran Singh, (2004) 3 SCC 297, Mangla Ram vs. Oriental Insurance Co. Ltd., (2018) 5 SCC 656, Rani vs. National Insurance Co. Ltd., (2018) 8 SCC 492 and Manuara Khatun vs. Rajesh Kumar Singh, (2017) 4 SCC 796. The Supreme Court in all these cases has recognized the power of the Tribunal to direct that the award in the first instance be satisfied by the insurer with a right to recover the same from the insured. However, in all these cases, the question regarding liability of the Insurance Company to pay the compensation in respect of an unauthorised passenger travelling in a goods carriage vehicle did not arise for consideration. Therefore, position of law on the subject in the cases of unauthorised passengers needs to be noticed.

9. In New India Assurance Co. Ltd. Vs. Asha Rani and others, (2003) 2 SCC 223, the Supreme Court, while explaining the difference between the defini