The main legal point established in the judgment is that the insurance company cannot avoid liability unless the insured has committed a breach of the policy conditions, and the owner may not be vicariously liable for the driver's unauthorised acts.

D. M. DHARMADHIKARI, J.

( 1 ) THIS appeal has been placed before me for decision as conflicting opinions have been expressed by learned S. K. Dubey, J. and S. P. Khare, j. as members constituting the Division bench.

( 2 ) THIS appeal has been preferred by the insurance company under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act of 1988' for short ). The Fifth Motor Accidents Claims tribunal, Bilaspur, by award made on 13. 12. 1995 has granted compensation in the sum of Rs. 1,22,000 with 12 per cent interest from the date of claim to the claimants for the death of deceased Loharmal in motor accident on 6. 4. 1991.

( 3 ) THE facts not in dispute are that the vehicle involved in the accident with registration No. 23/b 4809 was mini truck of the make Swaraj Mazda. It was a transport vehicle adapted for use of carriage of goods and was registered as a 'light motor vehicle' and was a 'transport vehicle' as defined under sections 2 (21) and 2 (47)respectively under the Act of 1988. The vehicle was insured with the appellant insurance company. As per the terms of the insurance policy, Exh. P/3, there was a compulsory insurance for public risk for which separate premium was charged. Apart from the public risk, it was insured for risk of one driver and two other persons on the vehicle as cleaner or coolies. Separate premium was charged for the above mentioned number of authorised occupants of the vehicle.

( 4 ) ON the version of the accident, the owner of the vehicle and one of the unauthorised occupants of the vehicle have been examined. The driver of the vehicle did not enter the witness-box. The version of the accident as given by Ramadhar, AW 2, who was one of the occupants of the vehicle, is as under: the witness and the deceased along with about 10-20 other persons as members of a marriage party were returning from village Amli Kapa. On the highway they stopped the vehicle in question of which Dhaniram was the driver. The members of the marriage party boarded the vehicle and also loaded their luggage. Deceased Loharmal and three other persons, namely, Jogiram, Mohan and Dilip sat on the rear side of the vehicle called colloquially as 'dala'. The rear portion of the goods vehicle called 'dala' is adapted for use of carrying goods only as there is no seating arrangement for passengers in the 'dala*. The above mentioned witness occupied seat on the front side near the driver. This witness also admitted that a dumper in which some other members of the marriage party were travelling had broken down. The bride and bridegroom in that dumper were also allowed to occupy the vehicle involved. The vehicle was thus allowed to be occupied by several persons from the marriage party. When the mini truck on its way to Bilaspur came near the Krishi Upaj Mandi barrier, the barrier bar was suddenly pulled down. The driver of the truck, therefore, suddenly applied the brakes which gave a violent jerk to the vehicle. The deceased loharmal along with other persons who were sitting in the 'dala' fell down. The deceased sustained injuries and ultimately succumbed to the same. The incident took place at 12. 00 in the midnight. The above witness also admitted that the driver was not paid any fare for giving them lift but it was agreed with him that he would be charging fare at the rate of Rs. 5 per passenger for carrying them up to Bilaspur.

( 5 ) THE above version of the accident is supported by the widow of the deceased, parekhia Bai, AW 1.

( 6 ) THE owner of the vehicle is a firm named Diyalal Meghji which is engaged in bidi business. The owner examined their manager Ashok Sharma, NAW 1. He stated that the vehicle was sent for carriage of goods of the firm. He has placed on record a standing written instruction issued to all the drivers engaged on the vehicles of the firm that they would not allow any passengers to travel in the vehicle. It is on the above facts that the owner denied his vicarious liability for the una

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