A gratuitous passenger is not covered under a motor vehicle insurance policy, and the insurance company is not liable to indemnify the insured for compensation awarded to the claimants in such cases.

S.K. Dubey, J.

1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988, (for short, 'the Act'), by the claimants against the award dated 4.11.1993, passed in Claim Case No. 5 of 1991 by the Fifth Additional Motor Accidents Claims Tribunal, Gwalior.

2. Brief facts giving rise to this appeal are these: One Hukmi, the husband of appellant No. 1 and father of appellant Nos. 2 and 3, was travelling in truck No. CPW 7690 on 26.11.1990, which met with an accident because of rash and negligent act of the driver, the respondent No. 2, as a consequence of that, he died at the spot. A dehati nalis was lodged by one Ramua, who was also travelling as a labourer in the truck which was loaded with the gittis. The claimants filed an application under Section 166 of the Act and claimed total compensation of Rs. 4,25,000/-, averring therein that the deceased was travelling as a labourer in the truck, who was engaged on the same day at the rate of Rs. 30/- per day by the driver of the truck. The owner of the truck denied the rash and negligent act of the driver of the truck, but admitted that the deceased was engaged by the driver as a labourer to load and unload the gittis. Insurance company denied the claim and took a defence that the deceased was travelling as a gratuitous passenger and, therefore, in terms of the policy, the insurance company was not liable to pay any compensation as the story of deceased Hukmi travelling as a labourer is concocted one which is apparent from the F.I.R. In accordance with term IMT 17 (3) of the policy, (Exh. D-4), no legal liability can be fastened against the insurance company and it cannot be made liable to indemnify the insured as the proviso No. 3 of IMT 17 casts a duty on the insured to keep a record of the name of each driver, cleaner, conductor or person employed in loading and/or unloading and the amount of wages, salary and other earnings paid to such employees and have to allow all times the insurance company to inspect such record, but, insured, in the present case, at no time, communicated that the deceased was employed under him, therefore, no liability can be fastened on the insurance company.

3. The Tribunal, on evidence adduced by the parties, recorded the finding that the deceased Hukmi was not employed as a labourer by the owner or the driver of the truck at the time of the accident, he was travelling as a gratuitous passenger, therefore, held that the insurance company is not liable to indemnify the insured and the claimants are not entitled to claim compensation from the insurance company. The Tribunal held that the claimants are entitled for compensation of Rs. 81,000/-, but, out of which an amount of Rs. 21,000 was ordered to be deducted because of the contributory negligence of the deceased as he was travelling in the truck by sitting over the dala of the truck. The Tribunal also directed the claimants to refund the amount of Rs. 25,000/- paid by the insurance company in terms of the interim award passed under Section 140 of the Act. Aggrieved of the deduction of Rs. 21,000 and the direction of refund of Rs. 25,000 and for enhancement of the compensation, the claimants have filed this appeal. The owner of the vehicle has not challenged the award by filing the appeal, but has filed the cross-objections insofar as the award is concerned against the owner and the driver.

4. Mr. R.D. Goyal, counsel for the appellants, Mr. K.B. Chaturvedi and Mr. V.K. Sharma, counsel for respondent No. 1 and Mr. B.B. Shukla, counsel for respondent No. 3, are heard.

5. It was contended by the claimants as well as by the owner of the truck that the finding recorded by the Tribunal relating to the deceased not travelling as a labourer is perverse. On going through the record and the evidence adduced by the parties, we are of the view that the finding does not call for any interference. Meera, PW 1, the widow of the deceased, has categorically stated that the deceased was working on a tractor a