ORAL ORDER

1. The present appeal under section 173 of the Motor Vehicles Act (“the MV Act” for short) is directed against the judgment and award dated 22.7.2020 passed by the learned Motor Accident Claims Tribunal (Aux.), Bharuch in Motor Accident Claim Petition No.674 of 2009.

2. Bereft of unnecessary details, short facts giving rise to the present appeal are that respondent No.1 along with his family members were going towards Somnath in Tata Sumo Car bearing No.GJ 16 AA 5670. The car was driven by respondent No.2 herein and it was of the ownership of respondent No.3 and insured with the appellant insurance company. The respondent No.2 was driving the car at very high and excessive speed so as to endanger human life. At about 6.00 pm, when the car was passing on Vanthli Junagadh Highway, respondent No.2 lost control over offending car resulting in dashed with the tree. The respondent No.1 and his family members suffered bodily injuries. The respondent No.1, therefore, filed Motor Accident Claims Petition No.674 of 2009 under section 166 of the MV Act against respondent Nos.2, 3 and the appellant to recover in the Motor Accident Claims Tribunal at Bharuch.

3. The respondents appeared through their learned advocates and contested the claim petition. The respondent Nos.1 and 2 contested the claim petition by filing written statement at Exh.72 wherein they have denied all the averments, statements and contentions raised in the claim petition. They also claimed that at the relevant time, respondent No.1 was going to Somnath along with the claimant who was relative of respondent No.3 – owner of the vehicle. It is also submitted in the reply that offending car dashed with the tree as one another Maruti car had applied sudden brakes and therefore, it was submitted that the claim petition may be dismissed.

4. The appellant contested the claim petition by filing the written statement at Exh.73 wherein the averments made in the claim petition are denied. It is also contended that offending vehicle was used for higher and reward though the vehicle was private vehicle. It was, thus, contended that there was violation of conditions of policy as contemplated under section 149(2) of the MV Act. Hence, the appellant insurance company may be exonerated.

5. The Tribunal has, by the impugned award, partly allowed the claim petition and has fastened liability of payment of compensation on the appellant insurance company and respondent Nos.2 and 3 jointly and severally. The insurance company has, therefore, approached this Court with this appeal.

6. By order dated 1.7.2021, the Notice for final disposal was issued since it was submitted that the appeal could be finally disposed of upon submission of higher and reward.

7. I have heard Mr.Rathin Raval, learned advocate for the appellant insurance company and Mr.Nishith Bhalodi, learned advocate for the claimant. The respondent Nos.2 and 3 though served have not appeared either in person or by duly instructed learned advocate.

8. Mr.Raval submitted that offending vehicle was under the cover of insurance by virtue of private policy. It is his submission that however offending vehicle was used for commercial purpose which amounts to infraction of terms of the policy. He submits that learned Tribunal has failed to appreciate the fact that the original claimant cannot be relative of respondent No.3 – owner of offending vehicle because the claimant is NRI being resident of USA. Relying upon the FIR which was lodged by respondent No.2 – driver of the vehicle, he submits that it is very clearly stated therein that the claimant was travelling in offending vehicle as passenger. He further submits that respondent No.2 has approached the Consumer Disputes Redressal Forum to claim all damages compensation which was partly allowed. The insurance company has challenged the order of the Consumer Disputes Redressal Forum before the State Consumer Disputes Redressal Commission. While dismissing the appeal of the insuranc