The main legal point established in the judgment is the permissible grounds for an insurer to defend a claim under Section 149(2) of the Motor Vehicles Act, 1988, and the court's interpretation of the admissibility of claims based on the violation of insurance policy conditions and other relevant legal provisions.

S.P. Wangdi, J.

1. By filing the present appeal, the Appellant Insurance Company seeks to assail the award dated 15.09.2010, passed by the learned Motor Accident Claims Tribunal, South and West Sikkim at Namchi, in MACT Case No. 03 of 2009, by which the claimants/Respondents have been awarded compensation of Rs.41,66,660.00 (Rupees forth one lakhs sixty six thousand six hundred and sixty) only, with interest @ 10% per annum from the date of filing of the claim petition.

2. The grounds pressed on behalf of the Appellant at the time of hearing are the following :

(i) That the ill-fated vehicle which met with the accident was carrying commercial materials when the vehicle was insured as a passenger vehicle, and therefore, the insured having violated one of the principle conditions of the policy, the award was not permissible.

(ii) That one of the claims allowed being the agriculture income based on the certificate of income issued by the Block Development Officer (in short BDO) Exbt. 16 is erroneous as the competence of the BDO to issue such certificate has not been established.

(iii) That the learned Tribunal awarding compensation against love and affection, pain and suffering deserves to be set aside as being impermissible under the law.

3. Mr. Tsewang Namgyal, learned Advocate, appearing on behalf of the claimants/Respondents, submits that the appeal is not maintainable since the grounds raised therein are alien to the provisions of Section 149(2) of the Motor Vehicles Act, 1988, apart from the plea that the finding of the Claims Tribunal on the aspects that are being assailed in the present appeal have been arrived at correctly based on the evidence available on the records.

4. Mr. Ajay Kumar Debnath, learned Advocate, appearing on behalf of the Appellant Insurance Company, seriously contended that the award is against the glaring evidence that the vehicle was carrying goods at the time of the accident, and, therefore, not covered under the Insurance Policy. It was submitted that in any case, provisions in the Motor Rules permitting carriage of goods by passenger vehicles was by itself illegal, and, therefore, the award of compensation by application of such impermissible rule was liable to be set aside. Mr. Debnath referred to the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Company v. Vimla Devi and Ors. reported in Supreme 2 (2009) 231 particularly paragraph 4 thereof which is reproduced below:

4. The MACT and the High Court appear to have proceeded on erroneous premises that the premium was also paid in respect of goods and passengers. In the aforesaid circumstances we think it appropriate to remit the matter to the MACT to consider the original documents relating to payment of premium which have been summarized in the paper book the amount of premium paid, and determine the person from whom the recovery is to be made. Without expressing any opinion on the merits, we remit the matter to MACT for taking a decision. It shall permit the Appellant to produce such material or evidence which according to it has relevance.

5. Mr. Debnath also referred to the case of M/S National Insurance Company Ltd. v. Baljit Kaur and Ors. reported in (2004) 1 Supreme 3, the relevant portion of which is reproduced below:

20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.

21. Th