JUDGMENT :

1. All these appeals under Section 173 of the Motor Vehicles Act, 1988 arise out of the common judgment and award dated 05.03.2024 passed by the Motor Accident Claims Tribunal (Main), Amreli, in Motor Accident Claim Petition Nos. 143 of 2015, 156 of 2015, 145 of 2015, 146 of 2015, 152 of 2015 and 155 of 2015, filed under Section 166 of the Motor Vehicles Act, 1988 (for short, “the MV Act”). By the impugned judgment, the learned Tribunal has partly allowed all the claim petitions and exonerated the Insurance Company, though it directed Opponent No.3–Insurance Company to first pay the awarded amount of compensation to the claimants, with liberty to recover the same from Opponent Nos.1 and 2, i.e., the driver and owner of the offending vehicle. Hence, being aggrieved and dissatisfied by the order of “pay and recover”, the captioned appeals have been preferred by the appellants.

2. Heard Ms. Kirti Pathak, learned advocate for the appellant- Insurance Company and Mr. Hemal Shah, learned Advocate appearing for respondent No.1.

3. The brief facts of the present appeals are that on 20.02.2015, all the claimants, including the deceased and the injured persons, had gone to visit Goddess Chotila Mataji by hiring the services of a Tata-407 Tempo bearing Registration No. GJ-01-BT-8592. At about 6:00 p.m., while they were returning from Chotila to their residence, the opponent No.1—driver of the Tata-407—was driving the vehicle at an excessive speed and in a rash and negligent manner so as to endanger human life. When the vehicle reached the place of incident, opponent No.1 lost control over the Tata-407, causing it to dash against a tree. Due to the impact, a serious accident occurred in which four persons died and three persons/claimants sustained grievous injuries, resulting in permanent disablement. As the accident occurred solely due to the negligence of the driver of the offending vehicle (Tata-407 Tempo No. GJ-01-BT-8592), an offence came to be registered against him at Chotila Police Station vide C.R. No. I- 24/2015. Therefore, the opponents Nos. 1 to 3, being the driver, owner, and insurance company of the offending vehicle, are jointly and/or severally held liable to pay compensation to the claimants.

4. Mr. Kirti Pathak, learned advocate for the appellant has assailed the impugned judgment and award on the grounds of quantum, sole negligence of the driver of the offending vehicle, invalid driving licence and the seating capacity as per the R.C. Book was only three passengers, whereas six claim petitions have been filed. She has further contended that the alleged vehicle was a goods vehicle and the claimants were travelling in it as gratuitous passengers. Since there was a clear breach of the insurance policy, the Insurance Company is not liable to pay any compensation. She has argued that the claimants were travelling in the goods vehicle without being owners of the goods, and therefore, they were gratuitous passengers. Hence, the learned Tribunal has grossly failed to consider the proviso to Section 147 of the Motor Vehicles Act. Relying upon the judgment of the Hon’ble Apex Court in New India Insurance Company v. Asha Rani, AIR 2003 SC 607, she submitted that the claimants were neither “third parties” nor “passengers” covered under the policy. Therefore, the Insurance Company cannot be saddled with liability. She further submitted that the learned Tribunal committed an error in directing the Insurance Company to pay and recover, despite the clear and fundamental breach of the policy on two counts; (i) the driver of the offending vehicle did not possess a valid and effective driving licence on the date of the accident, and (ii) the claimants were travelling as gratuitous passengers in a goods vehicle.

4.1 Further, she has submitted that the direction to pay and recover is unsustainable, particularly when the Insurance Company had raised a statutory defence under Section 147 of the MV Act. There is a clear distinction betwe