ORAL JUDGMENT

1. The appellant – Insurance Company has filed the present appeal against the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Aux), Jamnagar (hereinafter referred to as “the Tribunal”) in Motor Accident Claims Petition No. 289 of 2005, by which, the learned Tribunal has held and directed original opponent no.2 - Insurance Company to pay compensation to the original claimants.

2. Brief facts of the present case is that on 22.11.2003 at about 13.30 hours deceased Chanabhai Pithabhai was going to his house, at that time, driver – Jentibhai Virjibhai Rathod of original opponent no.1 has driven the Tractor bearing Registration No.GJ-10-E-9636 along with Trolley bearing Registration No.GJ-10-U-1629 in rash and negligent manner with excessive speed and lost control over the vehicle, the same came to be overturned and due to which the trolley of the tractor fallen on the deceased, as a result of which he sustained serious injury and succumbed to the injury. Hence, the original claimants have filed said claim petition before the Tribunal. The Tribunal, after evaluating the pleadings and evidence tendered by the parties, partly allowed the claim petition and awarded a sum of Rs.2,71,000/- and directed the opponents to pay compensation amount.

3. Being aggrieved and dissatisfied with the aforesaid impugned judgment and award, the present appeal is filed by the appellant – Insurance Company.

4. Heard Mr.Palak Thakkar, learned counsel appearing for the appellant – Insurance Company and Mr.Hashit Joshi, learned counsel appearing for the respondents – original claimants through video conference.

5. Mr.Palak Thakkar, learned counsel appearing for the appellant – Insurance Company has submitted that the Tribunal has materially erred in facts and law in holding that the appellant is jointly and severally liable for payment of compensation to the claimants. He has submitted that the Tribunal has committed an error in holding that though the deceased was travelling as gratuitous passenger in tractor/trolley, the claimants were entitled to compensation under Section 163A of the Motor Vehicles Act. He has submitted that the terms and conditions of the tractor/trolley cannot permit the carriage of unauthorized passengers. He has submitted that there is a breach of terms and conditions of the insurance policy by permitting the deceased to be carried in tractor and, therefore, the appellant is not liable to indemnify the insured or to satisfy the award under Section 149 of the Motor Vehicles Act.

The main thrust of the arguments of the learned advocate for the appellant is that the deceased was sitting as gratituous passenger in tractor attached to the trolley and neither he was labourer nor he was a third party and he was sitting as passenger in the tractor and, therefore, the impugned judgment and award passed by the Tribunal holding the Insurance Company liable to pay is erroneous. He has referred to and relied upon the contents of the FIR and the oral evidence of the Nathiben Chanabhai. He has referred to and relied upon the oral evidence of Nathben Chanabhai and submitted that Nathiben Chanabhai has specifically admitted in her cross-examination that her husband was sitting in trolley as he wanted to reach at village: Sidsar for his work and, therefore, he requested the driver of the offending vehicle to sit and at his request, he was allowed to sit in trolley. He has submitted that the appeal may be allowed. He has relied upon the decision in the case of Oriental Insurance Company Limited Vs. Maniben Wd/o. Chimanbhai Chaturbhai, 2013 (2) GCD 1267, Oriental Insurance Company Limited Vs. Premlata Shukla and others, (2007) 13 SCC 476 and United India Insurance Company Limited Vs. Mohammed Haji Abdulla Decd.

Through the Lrs. dated 19.02.2016 rendered in First Appeal No.3936 of 2009.

6. As against that, Mr.Hashit Joshi, learned counsel appearing for the respondents – original claimants has supported the imp