J U D G M E N T

The Insurance Company is the appeallant in this appeal. It is aggrieved by the impugned Judgment and Decree dated 26.10.2018 passed by the Motor Accidents Claims Tribunal, Special District Court, II Additional District Court, Salem in M.C.O.P.No.1706 of 2016.

2. By the impugned Judgment and Decree, the Tribunal has awarded a sum of Rs.14,90,800/- as compensation payable to the respondent Nos.1-2 who are parents of the deceasedSathish @ Sathishkumar whose life was tragically snatched at very a tender very age of 22 years leaving these respondents with tragedy and untold sadness.

3. Since successful claimants remain absent despite their name being printed in the cause and service of notice and despite repeated adjournments, a need for passing a detailed order arises.

4. There are least four recent decisions of the Supreme Court have answered the issue in favour of respondent claimants one of which was cited and distinguished by a Division bench of this High Court in Bharati AXA General Insurance Co. Ltd., Vs Aandi and others, (2018) SCC Online Mad 13295. I shall deal with all the case laws.

5. The point that arises for consideration in this appeal is whether the Tribunal was justified in ordering pay and recovery of the compensation in the impugned judgment. The case of the appellant insurance company in the case of a death of a gratuitous passenger who died in an accident while travelling on a goods carriage vehicle, there cannot be an order for pay and recovery.

6. Based on the submission of the learned counsel it was felt that the appeal deserves to be allowed and no contra decisions can be arrived in the light of the decisions of the Hon'ble Supreme Court and that of this Court cited by the learned counsel for the appellant which are detailed later in this Order in the course of discussion.

7. Incidentally, I have also authored two judgements on the very same issue and answered the issue in favour of the appellant in two cases.

8. It was felt that it would be prudent to revisit the case laws and provisions of the Motor Vehicles Act, 1988 and to put at rest the issue once for all, as repeatedly similar cases come up for consideration before this Court where successful claimants avoid appearing either in person or through their counsel, perhaps being aware of adverse caselaws.

9. For the purpose of the record, bare facts are narrated.The deceased was stated to be a B.Pharm student and was also doing said to be doing a part time job in a medical shop.

10. Admittedly, the deceased travelled in the insured “goods carriage”belonging to the third respondent insured with the appellant-

Insurance Company.

11.The learned counsel for the appellant Insurance Company submitted that the insured vehicle was a bolero pickup truck/van (Registration No.TN-30-BZ-2592). He submits that it was licensed to carry only two persons and was equipped with only1+1 seating capacity.

12. He submits that about 10 persons travelled in the said vehicle without authorisation. It is submitted that the Tribunal erred in ordering pay and recovery inasmuch as no liability was contracted by the appellant for covering the risk of death of a gratuitous passenger.

13. It is submitted that in the light of the decision of the Hon’ble Supreme Court in National Insurance Co. Ltd., Vs Baljit Kaur and others, (2004) 2 SCC 1, the impugned judgment and the decree were liable to be set aside to the extent it orders pay and recovery.

14. The Hon’ble Supreme Court in National Insurance Co. Ltd., Vs Baljit Kaur and others, (2004) 2 SCC 1 referred to another decision rendered by it in United India Insurance Co. Ltd., Vs Suresh.K.K and another, (2008) 2 TNMAC 231 (SC) while giving its views.

15.The learned counsel for the appellant Insurance Company further submitted that the Hon'ble Supreme Court in New India Assurance Co. Ltd., Vs Asha Rani and others, (2003) 2 SCC 223 was the first case which held that there cannot be an order for pay recovery in the case of grattitous passen