New India Assurance Co. Ltd. v. Prameela and Others (MACA No. 2234 of 2013)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 18TH DAY OF FEBRUARY 2016 / 29TH MAGHA, 1937 **MACA.No. 2234 of 2013** AGAINST THE AWARD IN O.P(MV)NO.621/2010 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 06-06-2013 ## **APPELLANT** /RESPONDENTS NO 2: THE NEW INDIA ASSURANCE COMPANY LTD., PALACE ROAD, THRISSUR REPRESENTED BY ITS MANAGER. BY ADVS.SRI.K.K.M.SHERIFF SRI.ZIYAD RAHMAN SRI.LAL.K.JOSEPH ## **RESPONDENTS** /PETITIONERS AND RESPONDENTS: 1. PRAMEELA, - W/O. LATE RADHAKRISHNAN, MANAKKAL KUNNATH HOUSE, NEAR VETINORY HOSPITAL, P.O, MAYANNOOR, THALAPPILLY TALUK, THRISSUR DISTRICT 675011. 2. ANUGRAHA (MINOR), D/O.RADHAKRISHNAN, MANAKKAL KUNNATH HOUSE, NEAR VETINORY HOSPITAL, - P.O. MAYANNOOR, THALAPPILLY TALUK, THRISSUR DISTRICT 675011 REPRESENTED BY HER MOTHER AND GUARDIAN PRAMEELA. 3. ASHWATHI (MINOR), D/O RADHAKRISHNAN, MANAKKAL KUNNATH HOUSE, NEAR VETINORY HOSPITAL, - P.O. MAYANNOOR, THALAPPILLY TALUK, THRISSUR DISTRICT 675011 REPRESENTED BY HER MOTHER AND GUARDIAN PRAMEELA. 4. NEELI, W/O LATE NEELKANTAN, MANAKKAL KUNNATH HOUSE, NEAR VETINORY HOSPITAL, P.O. MAYANNOOR, - THALAPPILLY TALUK- 675011, THRISSUR DISTRICT. 5. K.P XAVIER, S/O POULOSE, KOOTHUR HOUSE, P.O. VELUR, THRISSUR DISTRICT-675001. R1-R4 BY ADV. SRI.T.C.SURESH MENON - R1-R4 BY ADV. SRI.A.R.NIMOD R-R5 BY ADV. SRI.K.U.SIMON THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.2234 of 2013 -------------------------------Dated 18[th] February, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The New India Assurance Company Limited, the insurer of the offending vehicle viz., an ACE Goods Autorickshaw bearing Reg.No.KL-48A-1975 involved in the accident that led to the filing of O.P.(M.V)No.621 of 2010, has filed this appeal on being aggrieved by the judgment and award passed thereon by the Motor Accidents Claims Tribunal, Thrissur. The facts, in succinct, leading to the appeal are as follows:- On 18.1.2010 after the noon of night viz., at about 1.30 hours the said vehicle was returning from Edappal temple carrying the unused articles of fire works and the fire workers including the deceased. The said vehicle was proceeding through Kozhikode - Kunnamkulam public road and when it reached Korattikkara the first respondent/5[th] respondent herein who is the owner-cum-driver of the said vehicle took the vehicle to the mud road portion and thereupon he lost the control of the vehicle. The deceased Radhakrishnan was thrown out of the vehicle and the offending vehicle ran over him. He succumbed to the injuries M.A.C.A.No.2234/2013 2 on the same day itself. His legal heirs viz., the widow, two children and mother filed O.P.(M.V.)No.621 of 2010, in the said circumstances, claiming a total compensation of 7,00,000/-. Before the Tribunal, the₹ first respondent/5[th] respondent herein remained ex-parte and the appellant insurance company filed a written statement. The appellant specifically denied the accident and also the liability. At the same time, the appellant admitted the existence of a valid insurance policy in respect of the offending vehicle viz., the ACE Goods Autorickshaw. The appellant had also taken up a contention that deceased was not actually accompanying the goods and he was only a gratuitous passenger in the goods vehicle at the time of the accident and in such circumstances, his case would not be covered by the policy. That apart, it was contended that there was no valid permit for the vehicle at the time of the accident and therefore, there was violation of policy conditions, as well. In short, the Insurance Company had disputed its liability to indemnify the first respondent/5[th] respondent herein. Based on the rival pleadings the Tribunal had framed the following issues for consideration:- - “1. Whether the accident occurred due to the rash and negligent driving of the 1[st] respondent ? 2. Whether the deceased was a gratuitous passenger or whether he is accompanying his goods in the goods autorickshaw ? M.A.C.A.No.2234/2013 3 3. What is the quantum of compensation and if so, who is liable ?” 2. On the side of the claimants/respondents 1 to 4 herein, PW1 to PW3 were examined and Exts.A1 to A9 were got marked. There was no oral evidence on the side of the appellant insurance company. However, they got marked Ext.B1 which is the policy in respect of the offending vehicle. Issue Nos.1 and 2 were jointly considered by the Tribunal. The Tribunal arrived at the finding that deceased Radhakrishnan was not a gratuitous passenger and he was accompanying the goods loaded in the autorickshaw. Further, it was found that the accident took place solely due to the rash and negligent driving of the first respondent in the claim petition i.e., the 5[th] respondent herein. In the said circumstances, the Tribunal went on to consider the question of quantum of compensation and ultimately found that the claimants are entitled to get an amount of 6,51,000/- with₹ interest at the rate of 8% per annum from the date of petition till realisation. Based on the finding as against issue Nos.1 and 2 the Tribunal found that the appellant/2[nd] respondent is liable to indemnify the first respondent therein/the 5[th] respondent herein. But, at the same time, it was found that there was overloading in the cabin and M.A.C.A.No.2234/2013 4 therefore, there is violation of policy conditions. Based on the said finding the appellant herein was directed to pay the compensation and liberty was granted to recover the amount from the first respondent. It is in the said circumstances that this appeal has been preferred contending that the insurance company was entitled to avoid the liability to pay the amount of compensation. In other words, the contention is that in view of the evidence on record the Tribunal erred in ordering pay and recovery and instead the insurance company ought to have been exonerated from the liability to indemnify the insured. 3. We have heard the learned counsel for the appellant and the learned counsel appearing for respondents 1 to 4. 4. The main contention of the appellant is to the effect that from the evidence on record and also going by Ext.B1 policy the Tribunal ought not to have fastened liability to pay the amount of compensation on the appellant. In other words, the contention is that based on the evidence on record and the conditions of policy the Tribunal ought not to have ordered pay and recovery instead, ought to have exonerated the appellant from paying the compensation. At the same time, the learned counsel for respondents 1 to 4 contended that the Tribunal was justified in holding that the accident had occurred due M.A.C.A.No.2234/2013 5 to the rashness and negligence on the part of the first respondent/5[th] respondent herein who is the owner-cum-driver of the offending vehicle and since a valid insurance policy was admitted by the appellant herein and there was only violation of the policy conditions the Tribunal was justified in ordering pay and recovery as per the provisions under Section 149(4) of the Motor Vehicles Act. Therefore, according to the, the judgment and award of the Tribunal invite no appellate interference. 5. Evidently, the quantum of compensation is not under challenge. In the said circumstances, the only point to be considered in this appeal is whether the Tribunal had erred in finding that there was only violation of the policy conditions and therefore, in ordering pay and recovery. the appellant is liable to pay and then effect recovery. To drive home the point that the appellant is entitled to get exonerated from the liability to pay the compensation the learned counsel for the appellant relied on the oral testimonies of PW1 and PW2. Though we have not called for the records we have proceeded to consider the matter on merits as the certified copies of the oral testimonies of PW1 and PW2 were made available. Admittedly, in respect of the accident in question Ext.A1 F.I.R. was registered with Crime No.61 of 2010 at Kunnamkulam Police Station, based on the statement lodged by one M.A.C.A.No.2234/2013 6 Bhaskaran. Exts.A2 and A3 respectively the final report and scene mahazar in the said Crime. Going by Ext.A2, PW1 is a charge witness (CW2). He deposed before the Tribunal that himself and deceased Radhakrishnan were engaged in the fireworks in connection with the festival at Kulangara temple and they were employees of one Narayanankutty who was examined before the Tribunal as PW2. He deposed that on 17.1.2010 both of them were returning in the autorickshaw along with the unused materials of fireworks after finishing their fireworks at Kulangara temple in Edappal. The accident took place at Korattikkara. In the autorickshaw there were more than 500 empty pots which were used for the fireworks and other materials and they were travelling in the very same goods autorickshaw along with some other workers on its platform. When the autorickshaw was taken to the mud road portion Radhakrishnan was thrown out of the vehicle and the wheel of the offending vehicle ran over him. He was taken to Ansar Hospital, Perimbilavu in the autorickshaw belonging to Narayanankutty which was following the offending vehicle. Radhakrishnan died from the hospital. The offending vehicle as also the other autorickshaw belonging to their employer were proceeding from the temple premises. According to PW1, himself and deceased M.A.C.A.No.2234/2013 7 Radhakrishnan were getting 350/- per day as wages. During cross₹ examination he would depose that deceased Radhakrishnan is his relative and they were travelling together in the offending vehicle. That apart he deposed that besides himself and deceased Radhakrishnan four others were also there in the vehicle. In the cross examination he would specifically depose to the effect that Narayanankutty, the employer of himself and deceased Radhakrishnan, was inside the cabin of the offending vehicle viz., ACE Goods Autorickshaw and himself, deceased Radhakrishnan and the others were on the platform. He deposed that Radhakrishnan fell on the road as an impact of the jerk occurred when the vehicle was taken to the mud road portion of the road and further that Radhakrishnan alone had sustained injuries in the accident. He would also depose that the driver of the vehicle was one Xavier. He had acquaintance with the said Xavier for the past four or five years. The learned counsel would further submit that a careful scrutiny of the evidence of PW1 would reveal that the Tribunal had not correctly adverted to the evidence of PW1. Certain statements which were not actually made by PW1 were virtually attributed to have been said by PW1 though in troth, no such statement was made by PW1 during his examination before the Tribunal. The learned counsel drew M.A.C.A.No.2234/2013 8 our attention to the following discussion of the evidence of PW1 in the judgment to fortify his contention:- “However, PW1 deposed that Radhakrishnan went out of the cabin by getting the left side door of the goods autorickshaw.” The specific contention is that PW1 had not deposed before the Tribunal on the aforesaid lines. Further, the learned counsel contended that a scanning of the evidence of PW1 would reveal that he had not only stated to that effect but, at the same time, he has specifically deposed to the effect that his employer was inside the cabin and himself and deceased Radhakrishnan along with some others were on the platform of the offending vehicle. PW2 Narayanankutty is the employer of PW1. True that, PW1 deposed to the effect that himself and deceased Radhakrishnan were employees of PW2. However, PW2 had denied employee-employer relation between himself and deceased Radhakrishnan. But, at the same time, it is evident that he had deposed to the effect that earlier himself and deceased Radhakrishnan had worked under one Devassy at Wadakkanchery. He would also admit the fact that he was the contractor of the fireworks in Kulangara temple. At the same time, he deposed as follows:- M.A.C.A.No.2234/2013 9 “രരാധരാകകൃഷഷഷ്ണന്‍ വവെടടിവക്കെടഷ സസംബന്ധമരായടി കകഴടിപ്പഷ്ണടിയഷക്കെഷ വെന്നയരാളരാണഷ്ണരാ എന്നഷ ¥ùßÏßÜï.” Obviously, his case was that he was not travelling in the offending vehicle at the time of the accident. His version is that he came to know about the death of Radhakrishnan when one Mani passed on the said information over phone. He would also admit the fact that he went to the hospital to see Radhakrishnan and thereafter, taken part in his funeral. A scrutiny of his evidence would reveal that according to him, he had never employed Radhakrishnan as a fireworker on that day and in fact, on that day his workers were Ramakrishnan, Rajan, Krishnan, Ayyappan, Arumughan, Rajesh and Unnikrishnan. He deposed to the effect that from the temple he was returning home in an autorickshaw and his brother-in-laws were also along with him. He would further depose that autorickshaw in which he was travelling at that point of time was driven by one Manikandan. His further version is to the effect that himself and two others were in the said autorickshaw and the others were in another vehicle described by him as “407 വെണടി”. He would also admit the fact that whenever he gets contract of small fire works he would call the Ace Goods Autorickshaw belonging to Xavier. He has also specifically denied the factum of having employed M.A.C.A.No.2234/2013 10 Radhakrishnan as his employee at any point of time. On a scrutiny of the evidence of PW2 we are of the considered view that he was unscrupulously telling untruth before the Tribunal. Evidently, he admitted the fact that he was the contractor in respect of the fireworks at Kulangara temple, Edappal. But, at the same time, he had deposed during his chief examination as follows:- “രരാധരാകകൃഷഷഷ്ണന്‍ വവെടടിവക്കെടഷ സസംബന്ധമരായടി കകഴടിപ്പഷ്ണടിയഷക്കെഷ വെന്നയരാളരാണഷ്ണരാ എന്നഷ ¥ùßÏßÜï.” 6. Thus, it can be seen that PW2 was virtually feigning ignorance as to how Radhakrishnan happened to be inside the autorickshaw which met with the accident and in which his employees were accompanying the unused articles of the fire works. At the same time, he would depose that on that day he had not called the autorickshaw belonging to Xavier. He deposed thus:- “çØÕcùßæa Auto ¥Kí ÉÃßÏíAá Õß{ߺîßøáKßÜï.” He would also feign ignorance about the accident. To a pointed question he answered that he did not know whether Radhakrishnan died owing to the accident in question. He deposed thus:- “രരാധരാകകൃഷഷഷ്ണന്‍ എടപ്പരാള്‍ വവെടടിവക്കെടടിനഷ വെന്നടിടഷ മടങടി Ace Autorickshaw യടില്‍ ÕøáçOÞZ ഓണടരാ മറടിഞഷ പരകക്െ Éxß ÎøߺîÄÞæÃKí ÉùÏáKá. (Q) ¥ùßÏßÜï (A).” M.A.C.A.No.2234/2013 11 At the same time, he would admit the fact that Jayakrishnan is his employee and he would also admit the fact that the said Jayakrishanan was in the hospital where deceased Radhakrishanan was taken immediately after the accident. It is also to be noted that he admitted the fact that he went to the hospital wherein Radhakrishnan was admitted immediately after the accident but, according to him, he went there on being informed of the accident by one Mani. He also deposed to the effect that he went to the hospital and also participated in the funeral of Radhakrishnan. He deposed as follows:- “øÞdÄß ¾ÞX രരാധരാകകൃഷഷഷ്ണæa ÆÙßMßÏíAÜᢠ®ÜïÞ¢ µÝßE ” çÖ×ÎÞഷ്ണഷ οBßçMÞÏÄí. It is also to be noted that though he had deposed that he had not hired the autorickshaw belonging to Xavier on that day he had specifically deposed that he used to hire the autorickshaw of Xavier whenever he obtained small contracts of fireworks. It is to be noted that he deposed that he did not know about the accident of the offending vehicle viz., the ACE Goods Autorickshaw. He deposed as follows:- “Ace Auto ÎùßEÄÞÏùßÏßÜï.” A careful scanning of the evidence of PW2 would reveal that he was not actually speaking the real truth before the Tribunal. He admitted the M.A.C.A.No.2234/2013 12 presence of his own employee Jayasankar, who was examined as PW1, at the hospital. It is in this context that the evidence of PW1 has to be looked into. According to PW1, himself and deceased Radhakrishnan were employees of Narayanankutty (PW2) even at the relevant point of time and according to him, after the fireworks at Kulangara temple in Edappal he along with deceased Radhakrishnan and some others were returning in the offending vehicle being driven by Xavier and the vehicle was also loaded with unused articles of fireworks. Thus, it is evident that on a scrutiny of oral testimonies of PW1 and PW2 it can be seen that there are _inter se_ contradictions in their versions. As noticed hereinbefore, the deposition of PW2 would reveal that he had virtually feigned ignorance about the accident. But, at the same time, his admission to the effect that immediately after the accident he went to the hospital where deceased Radhakrishnan was admitted and that he had attended his funeral and went back only after his obsequies would reveal that PW2 was actually concealing certain relevant aspects. In the contextual situation, the evidence of PW3 is also to be looked into. The learned counsel appearing for the appellant as also respondents 1 to 4 did not dispute regarding the discussion of the evidence of PW3 in the judgment. Going by the evidence of PW3 which was discussed in M.A.C.A.No.2234/2013 13 the impugned judgment, he conducted the investigation in Crime No.61 of 2010 of Kunnamkulam Police Station registered in connection with the accident in question. His deposition is to be effect that on investigation he came to know that Narayanankutty was in the offending vehicle at the relevant point of time. When that be the evidence of PW3 as also the evidence of PW2, the evidence of PW1 that PW2 was accompanying the offending vehicle and he was inside the cabin cannot be disbelieved. At the same time, before deciding whether PW1 could be believed, in respect of other aspects, certain indisputable facts obtained in this case have to be looked into. 7. It is common case that Radhakrishnan met with an accident while travelling in an autorickshaw bearing Regn.No.KL- 48/A 1975 on 18.1.2010 at about 1.30 hours, in the midnight. It is also not disputed that he succumbed to the injuries sustained in the said accident. When that be so, the evidence of PW1 to the effect that deceased Radhakrishnan was travelling in the offending vehicle is to be believed. It is to be noted that he had not deposed before the Tribunal that deceased Radhakrishnan was travelling in the cabin of the offending vehicle. On going through the oral testimony of PW1, we found substance in the contention of the learned counsel for the M.A.C.A.No.2234/2013 14 appellant that the Tribunal had committed an error in recording that PW1 had deposed that Radhakrishnan went out of the cabin by getting through the left side of the goods autorickshaw. It is to be noted that scanning of evidence of PW1 would reveal that he had virtually deposed to the effect that deceased Radhakrishnan was travelling on the platform of the offending vehicle along with himself and some others and that Radhakrishnan was actually sitting on a sack placed on the platform of the offending vehicle at the time when the offending vehicle was taken to the mud portion of the road in question, which ultimately resulted in the accident. Though PW1 deposed to that effect during the cross-examination, no re-examination was conducted by the claimants. In other words, the said version of PW1 was not seriously disputed going by the evidence on record. True that, going by the FIR, deceased Radhakrishnan was travelling in the cabin, though PW3 had also deposed in tune with the statements in Ext.A1 FIR. In view of the availability of the direct evidence of PW1, who is also a charge witness, cited as such by the prosecution and as according to them, he had actually witnessed the incident, we are of the view that it can only be taken that deceased Radhakrishnan was travelling in the offending vehicle not in the cabin whereas he was actually travelling on its M.A.C.A.No.2234/2013 15 platform. In the absence of any contra evidence, that alone can be the conclusion that could be drawn based on the evidence of PW1, who is admittedly, the sole occurrence witness examined in this case. In such circumstances, it cannot be said that there is no evidence available which would reveal that deceased Radhakrishnan was actually travelling in the offending vehicle in his capacity as the authorised representative of the owner of the goods. As noticed hereinbefore, the specific assertion of PW2, the owner of the goods is to the effect that deceased Radhakrishnan was not his employee. That apart, it is to be noted, there is a conspicuous absence of any pleading in the claim petition to the effect that deceased Radhakrishnan was travelling in the vehicle in question as the authorised representative of the owner of the goods – viz., Narayanankutty. In fact, what was stated therein was that he was travelling along with some other fire workers in the autorickshaw. But, at the same time, the unchallenged version of PW1 would reveal that deceased Radhakrishnan was also travelling in the offending vehicle along with him and some others and the accident had occurred when Radhakrishnan was thrown out of the autorickshaw when the fifth respondent herein, who was driving the vehicle, took the vehicle suddenly on to the mud portion of the road. The evidence would also M.A.C.A.No.2234/2013 16 go to show that immediately thereupon he was taken to Ansar Hospital, Perimbilavu and enroute to the hospital, he breathed his last. It is to be noted that even PW2 deposed to the effect that he went to the hospital on getting the information regarding the death of Radhakrishnan from one Sri.Many. As noticed hereinbefore, PW2 had also deposed to the effect that he found PW1 there in the hospital. In such circumstances, the evidence of PW1 to the effect that himself and deceased Radhakrishnan were travelling in the autorickshaw, and on being thrown out of the vehicle, Radhakrishnan sustained injury and thereafter, he was taken to Ansar Hospital, Perimbilavu and on the way to the hospital, he succumbed to the injuries and still, he was taken to the hospital from where his death was declared, need not be doubted. In short, Radhakrishnan died of a motor accident is revealed from the oral testimonies and the evidence on record. 8. In the light of the aforesaid position obtained in this case, on a careful analysis of the evidence on record, the question is whether the Tribunal was correct in holding that deceased Radhakrishnan was not a gratuitous passenger. So also, we will have to consider whether the Tribunal was justified in holding that there was only violation of the conditions of the policy in this case. Certainly, the latter question would M.A.C.A.No.2234/2013 17 depend upon the finding of the former question. The unchallenged version of PW1 is to the effect that deceased Radhakrishnan was travelling on the platform of the offending vehicle, which is a goods autorickshaw, his status can only be that of a gratuitous passenger or an unpaid passenger. As noticed hereinbefore, there is no pleading to the effect that deceased Radhakrishnan was an authorised representative of the owner of the goods, which was being loaded in the vehicle in question and in fact, there was no evidence on record, which would suggest that he was actually travelling as an authorised representative of PW2. In the said circumstances, when the evidence of PW1 is taken as true, it is to be believed that deceased Radhakrishnan along with PW1 and others were travelling on the platform of the said goods autorickshaw. In such circumstances, when once it is obvious that he was not travelling in the cabin of the said autorickshaw, his status can only be that of a gratuitous passenger. True that, in this case, the real nature of the policy was not actually gone into by the Tribunal. But at the same time, there is no specific finding regarding the nature of the policy. On going through the policy, which is Ext.B1 and also taking note of the submissions made by the learned counsel for the appellant at the Bar, it is evident that it is a M.A.C.A.No.2234/2013 18 packaged policy. Even then, considering the fact that the deceased was travelling on the platform of the goods vehicle, he could not have been attributed with a status other than that of a gratuitous passenger. Whatever be the status of the deceased, at the time of the travel, the claimants could not have claimed that deceased Radhakrishnan was not a gratuitous passenger in the offending vehicle. In such circumstances and in view of said position obtained in this case, the decisions of the Division bench of this Court in **New India Assurance Co.Ltd.** v. **Alikutty Antony [2009 (4) KLT 130]** and **Mary and ors.** v. **United India Insurance Company and another [2014 KHC 2550]** assume relevance. In **Alikutty Antony's** case (supra), certain headload workers were travelling in a goods vehicle outside the cabin and on the platform. In a claim petition filed by one of the injured persons, the Tribunal held that they are entitled to compensation and the insurance company was fastened with the liability to indemnify the owner of the vehicle. It was in such circumstances that the said appeal was preferred. This Court found that headload workers travelling in a goods vehicle out side the cabin and on the platform could not be treated as representatives of the owner of the goods and in such circumstances, the insurance company could not be made liable to M.A.C.A.No.2234/2013 19 indemnify the owner of the vehicle. Evidently, the said decision was arrived at, relying on the decision of the Honorable Apex Court in **National Insurance Company Ltd.** v. **Swaroopa [AIR 2006 SC 2472]** . The same view was reiterated in **Mary's** case (supra). It was held therein that the expression 'any person' occurring in S 147(1) would not cover a gratuitous passenger carrying in a goods vehicle. If that be the position, finding of the Tribunal that deceased Radhakrishnan was not a gratuitous passenger cannot be said to be the correct decision based on the evidence on record. In fact, it can only be held that he was a gratuitous passenger in a goods vehicle. In the light of the decisions referred supra, if a person met with an accident and later, succumbed to the injuries, the insurer could not be held liable to indemnify the owner of the offending vehicle in a claim for compensation preferred by the legal heirs of the deceased person. In fact, that position was settled by the Honourable Apex Court in **Swaroopa's** case (supra). The Tribunal had erred in finding that deceased Radhakrishnan was not a gratuitous passenger. In other words, we find that deceased Radhakrishnan was a gratuitous passenger in the offending vehicle involved in the case. That being the position, the finding of the Tribunal that there was only violation of M.A.C.A.No.2234/2013 20 policy condition in this case also cannot be upheld. True that, if there is only violation of condition, the Tribunal can order pay and recovery. But, at the same time, there cannot be any doubt with respect to the position that when insurance company is entitled to be exonerated from the liability, there cannot be any order for pay and recovery. In fact, in **Alikutty Antony's** Case (supra) on finding that such passengers travelling on a platform of a goods vehicle are not entitled to be treated as representative of the owner of the vehicle and in such circumstances, they could only be treated as gratuitous passengers, this Court interfered with the award passed by the Tribunal saddling the liability on the insurance company to indemnify the owner of the vehicle. Virtually, in that case, the appeal preferred by the insurance company was allowed and the appellant-insurance company was exonerated from the liability. The inevitable finding in this case also has to be on the same lines, in the aforesaid circumstances. In other words, in the light of the discussion, the order of the Tribunal to the third respondent to pay and recover is also to be interfered with. In such circumstances, we hold that the appellant is entitled to be exonerated from the liability to pay the amount of compensation. Consequently, the order of the Tribunal directing the appellant herein to M.A.C.A.No.2234/2013 21 pay and recover is set aside and it is found that the appellant is not liable to pay the amount at the first instance and then proceed to recover. In view of the above said discussion, the first respondent therein/the fifth respondent herein is found liable to pay the amount granted under the impugned award. The appeal is allowed to the above extent. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS/MBS