A private vehicle package policy covers the liability of the insurer for injuries or death to occupants, and the burden of proving that the vehicle was used for commercial hire rests solely on the insurer.

JUDGMENT :

NISHA M. THAKORE, J.

1. The captioned appeal is filed at the instance of the appellant -Insurance Company, being aggrieved and dissatisfied with the judgment and award dated 25th June 2015 passed by the learned Motor Accident Claim Tribunal, Bhavnagar in MACP No.835 of 2007.

2. By the said judgment and award, the Tribunal has partly allowed the claim petition preferred by the original claimants under Section 166 of the Motor Vehicle Act, 1988, holding them entitled to recover sum of Rs.8,34,000/- towards compensation from the original opponents, jointly and severally, together with running interest at the rate of 9% per annum from the date of filing of claim petition till its actual realization with proportionate cost. Hence, the captioned appeal, at the instance of the original opponent no.2, essentially disputing its liability to pay any amount of compensation.

3. Considering the grounds raised in the appeal memo and the submissions made by learned advocate for the appellant on record, this Court vide order dated 28th January 2016, had admitted the appeal and had issued notice for final disposal. In the interim application for stay preferred by the -appellant - Insurance Company, conditional order of stay was granted against the execution and implementation of the impugned judgment and award, on deposit of the entire award amount at the concerned Tribunal. It was further directed to disburse the award amount in favour of the original claimants in terms of the directions issued by the Coordinate Bench in its judgment dated 8th May 2014 in First Appeal No.3289 of 2013. The record suggests that the notice of admission of appeal was duly served upon respondent nos.1.1 to 1.4 who are the original claimants and the notice of admission of appeal is also reported to have been duly served upon respondent no.2 who is the registered owner of the vehicle involved in the accident. It was further reported that the mother of the deceased who has been joined as respondent no.1.5 has expired. The record and proceedings were called for.

4. Mr. Ayush Bhandari learned advocate had appeared on behalf of Mr. Nikunt K Raval learned advocate on record for the appellant Insurance company. Learned advocate Mr. Vishal C Mehta had appeared on behalf of the respondent nos.1.1 to 1.4 - original claimants. It is required to be mentioned that on admission of the captioned appeal, the original claimants have preferred cross objections, essentially praying for enhancement of the amount of compensation for the grounds raised in the application. The cross objections were directed to be heard along with the First Appeal. Considering the appeal of 2015 pending consideration, the matter was peremptorily heard with the able assistance of learned advocate, learned advocates on record for the respective parties.

5. Learned advocate for the appellant- Insurance Company, has vehemently assailed the impugned judgment and award by submitting that the Tribunal committed grave error in treating the deceased as passenger in the insured vehicle. It was submitted that the Tribunal failed to appreciate the evidence brought on record, more particularly the police case papers produced vide list at Exhibit 20, which includes the statement of the driver Pankajbhai Babariya has also been produced on record at Mark 20/2. The bare appreciation of the