1. This is an appeal filed by the Insurance Company under Section 173 of the Motor Vehicles Act (hereinafter referred as the Act ) being aggrieved by the award dated 11.12.2002 passed by the IVth Member, MACT, Indore in Claim Case No. 187/99 mulcting the liability on the appellant Insurance Company to pay compensation to the claimant Mangilal.

2. Brief facts of the case are that on the date of incident i.e. 17.02.1999 claimant Mangilal was travelling on the tractor trolley insured with the appellant National Insurance Company Ltd. and which was rashly and negligently driven by respondent No. 2 Omprakash, the tractor trolley toppled down and resulted in grievous injuries to Mangilal. The tractor trolley was owned by Bhuansingh respondent No. 3. The claimant preferred a claim before the learned MACT seeking compensation on various grounds from the appellant as well as respondents No. 2 and 3. The claim was resisted by the Insurance Company on the ground that Mangilal was an unauthorized passenger on the said vehicle and therefore, due to the conditions of violation of policy, the appellant Insurance Company was not liable to pay the compensation. The learned Tribunal however, framed the issues and on recording the evidence, awarded a sum of Rs. 20,000/-to the claimant holding the respondents jointly and severally liable to pay the same with 9% interest per annum from date of application. The Insurance Company also filed review before the Tribunal; stating that it had erred in mulcting the liability on the Insurance Company since there were several cases by the Apex Court to the contrary like New India Assurance Company v. Asha Rani & others 2003 ACJ 1 (SC) which have not been considered. The review was also dismissed by the Tribunal and hence the present appeal by the appellant Insurance Company.

3. Counsel for the appellant Insurance Company has vehemently stressed the fact that the tractor trolley belonging to respondent No. 3 Bhuansingh was not covered for passenger risk and therefore, no liability could be fastened on the appellant. He urged that the claimant Mangilal was going to a wedding and was being carried to the tractor trolley and his risk was not covered under the policy since like gratuitous passengers being carried in the goods vehicle are not covered by the policy, in a similar manner it was the condition of breach of the policy and the negligence was of the driver of the vehicle alone, the company was not liable. He urged that the award was against the settled principles of law and evidence adduced by the appellant. Counsel also stated that the review of the appellant Insurance Company was also dismissed by the Tribunal and hence both the judgments in review as well as the claim case be set aside.

4. Counsel for the appellant also urged that the fact that vehicle which was insured for agricultural purposes was being used for carrying passengers and hence, there was violation of conditions of policy which has been ignored by both the MACT as well as the Court reviewing the order.

5. Counsel relied on Oriental Insurance Company Ltd. v. Premlata Shukla and others 2007 ACJ 1928 : (2007 AIR SCW 3591) to state that the FIR had been filed to indicate that the driver of a van had not driven the van rashly and negligently. In such a case the FIR could be relied upon for evidence, irrespective of the fact that contents of the document were proved or not. Relying on Mithlesh and others v. Brijendra Singh Baghel and others 2007 ACJ 10 : (AIR 2007 MPG 380). Counsel stated that this High Court had also considered the case of death of a person travelling on the mudguard of tractor attached to trolley when the vehicle turned turtle. The tractor was insured for use for agricultural purposes but was transporting sand for construction of house and the Court had held that there was breach of policy and Insurance Company was exempted from liability. Finally relying on National Insurance Co. Ltd. v. Rattani and others 2009 ACJ 925 : ( AIR 2009 Supreme Court 1499). Counsel stated that the Apex Court had held that liability of Insurance Company when the vehicle is a goods vehicle and truck was carrying 30-40 persons turned turtle and the claimants had stated that these passengers were travelling in the vehicle as representatives of owner of goods and not as members of the marriage party; the question was considered that whether the victims of the accident were travelling in the truck as gratuitous passengers and the Apex Court held that Insurance Company is exempted from liability.

6. However, none has appeared on behalf of the respondent claimant Mangilal in the present case although served and since the appeal is of the year 2003 and original claim is of the year 1999, the matter is taken for hearing on merits.

7. On considering the above facts, I find that two questions arise for consideration whether the Insurance Company can be made liable to pay the compensation when it has taken the plea that the vehicle was being used contrary to conditions of policy and secondly whether the FIR can be considered as a piece of evidence. Considering the second question first, I find that undoubtedly the certified copy of the FIR can be used as a piece of evidence since it is being relied on by both the parties and admittedly Mangilal the claimant was part of the band that was being transported to the wedding party according to the contents of the FIR.

Now considering the first question, I find that it is trite to state that when there are violations of conditions of the Insurance policy the liability to pay compensation cannot be mulcted on the Insurance Company. However, in the instant case, in review petition also the learned Judge of the Tribunal had been dissatisfied by the explanation rendered by Sushil Kumar Khandelwal (P.W.1) the Insurance Company representative regarding the conditions of policy not being explicitly explained, and the violation was also not specifically pointed out. And besides the fact that the claimant was not in the employment of respondent owner or his status was also not proved and hence the liability was specifically mulcted on the Insurance Company by the Tribunal.

8. On closer scrutiny, I find that Shri Kandelwal P.W. 1 has stated that the vehicle had a comprehensive policy and third party risk was covered on examining Ex.D/1, D/2, and D/3 the insurance cover note and policy etc. I find that the policy vide cover note (Ex.D/2) made provisions for cover of six labourers and extra premium of Rs. 90/-was paid for the same. From Ex.D/3, the Insurance policy, it is evident that the tractor trolley was insured for use of vehicle for agricultural purposes only according to Chapter 14 (1)(b)(c) and third party risk was also to be covered only when the vehicle was being legally and validly plied for agricultural purpose only.

9. Then considering this singular fact in the light of Asha Rani (supra), I think that the learned Judge of the lower Court has erred in holding that the Insurance Company was liable to pay the compensation. I find reinforcement in the view of the Apex Court in the matter of Rattani (supra) whereby members of a marriage party were denied to be representatives of the owner of goods or gratuitous passengers.

10. Thus, the liability has been wrongly mulcted on the Insurance Company and it is hereby exonerated and the impugned award is set aside to that extent.

11. The finding of negligence has attained finality for it has

not been challenged either in the Court below or before me. Similarly I find that the assessment of compensation to the claimant is based on the evidence led before the Tribunal and in the instant case no fault can be found with the amount of compensation assessed at Rs. 20,000/-since it has not been challenged before me by way of cross-objection or otherwise and has therefore, attained finality. 12. Thus, the appeal is partly allowed and the award is modified as follows : The insurance company is exonerated from the liability to pay the compensation, the compensation of Rs. 20,000 with 9% interest shall be paid by Respondent No. 2 driver Omprakash and Respondent No. 3 owner Bhuansingh jointly and severally. Rest of the findings need not be disturbed and are hereby upheld. Appeal partly allowed.