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3.We have heard the learned counsel for the appellants, the learned counsel appearing for respondents 1 and 2 and also the learned counsel appearing for the insurer, the third respondent. Considering the fact that the third respondent did not file any appeal against the quantum of compensation fixed by the Tribunal, we need only to look into the question whether there is any force in the challenge made by respondents 1 and 2 against the quantum of compensation fixed by the impugned award on the ground that it is exorbitant. But it is to be noted that the appellants even while challenging the exoneration of the third respondent from the liability M.A.C.A.129/2012 & CO.39/2012 4 to compensate rather, to indemnify the second respondent seek for enhancement of the quantum of compensation. We are of the view that the status of Jogesh P.Varghese viz., whether he was a gratuitous passenger or not has to be decided first and then the questions whether the policy in question is a comprehensive policy and whether the Tribunal is justified in absolving the third respondent from indemnifying the second respondent are to be considered. For considering the aforesaid question, a succinct narration of the facts is inevitable. The second respondent purchased the vehicle in question on 8.2.2007 and he insured the said vehicle with the third respondent and admittedly, the policy in respect of the said vehicle is a private car package policy. Later on 13.2.2007, the second respondent registered the said vehicle as a taxi and obtained taxi permit on 20.3.2007 and it was valid up to 19.3.2012. The respondents before the Tribunal produced Exts.B3 and B5 which are the photocopies of the policy certificates. The accident occurred within the validity period of the package policy. But at the same time, the third respondent took up the contention that the vehicle in M.A.C.A.129/2012 & CO.39/2012 5 question was insured as a private car and the fact that it was subsequently registered as a taxi was not at all intimated to the third respondent by the second respondent. So also, it is contended that the second respondent had not paid the requisite additional premium to obtain modified policy certificate so as to get insurance coverage for the said vehicle on its conversion as a taxi. Respondents 1 and 2 filed a joint written statement contending inter alia that Santro Car was having a valid insurance policy with the third respondent at the time of the accident. It is stated therein that the car hit against an electric post and consequently, Jogesh P. Varghese sustained injuries and that the death was not due to the accident but due to the negligence on the part of the hospital authorities. In the written statement, they have specifically denied the negligence on the part of the first respondent. Ext.A6 is the photocopy of the wound certificate. Ext.A5 is the postmortem certificate which would reveal that Jogesh P.Varghese died on 14.6.2007 due to the injuries sustained in the accident. In the claim petition, it was stated that the deceased was running an Aluminium Fabrication Unit besides M.A.C.A.129/2012 & CO.39/2012 6 undertaking contract in respect of such works. That apart, it is stated therein that he was running shops at Karukachal, Vazhoor as well as in Pulikkal kavala. Ext.A15 is the license issued from Karukachal Grama Panchayat revealing that the deceased was conducting aluminium fabrication store in building bearing No.V/105B(1) of Karukachal for the period 2005-'06. Ext.A16 is the membership certificate issued by the Kerala Vyapari Vyavasayi Ekopana Samithi to the deceased. Exts.A19 and A20 are respectively the driving licence and photocopy of the first page of the SSLC book of the deceased. They would go to show that the date of birth of the deceased was 1.5.1971. In other words, they would go to show that he was aged 36 years at the time of his death. A scanning of the ground raised in the appeal as also the arguments raised on their behalf would reveal that there is no serious challenge with respect to the quantum of compensation fixed by the Tribunal and no appeal has been preferred by the third respondent insurer against the impugned award. Respondents 1 and 2 evidently raised challenge against the quantum fixed by the Tribunal as per the impugned M.A.C.A.129/2012 & CO.39/2012 7 award. A perusal of the cross objection would reveal that apart from raising a vague contention as ground No.3, no specific challenge was made by respondents 1 and 2 against the impugned award in respect of the manner in which the Tribunal assessed the compensation. Ground 3 reads thus:-

4.But the question to be considered is whether the Tribunal was correct in absolving the third respondent from indemnifying the second respondent or in other words, whether the Tribunal was justified in directing respondents 1 and 2 to pay the amount awarded as per the impugned award. The facts stated hereinbefore as also the rival contentions raised have to be analysed to answer the said question. Certain indisputable aspects have to be taken note of for answering the said question. The fact that the vehicle in question was insured only as a private car with a private car package is not in dispute. The fact that subsequently the vehicle was registered as a taxi was not at all duly intimated by the second respondent to the third respondent. Above all, the second respondent had not paid the requisite premium for getting appropriate insurance coverage which is bound to be taken in respect of a taxi car. These facts are not at all M.A.C.A.129/2012 & CO.39/2012 9 disputed. In other words, the indisputable position obtained in this case is that the vehicle in question involved in the accident was having only a private car package policy at the relevant point of time. Evidently, the deceased Jogesh P.Varghese was travelling in the vehicle as a passenger. The very case of respondents 1 and 2 is that in respect of the vehicle in question a taxi permit was obtained on 20.3.2007. True that the accident occurred only subsequently. The position obtained is to the effect that the second respondent had taken only a private car package policy and on receipt of taxi permit he had failed to intimate it to the third respondent-insurer and also to obtain proper insurance coverage for the said vehicle as a taxi by paying additional premium. The said unrebutted factual aspects would indicate that the deceased person was travelling in the vehicle as gratuitous passenger. The learned counsel for the third respondent contends that when that be the position, the Tribunal was justified in absolving the insurer from indemnifying the second respondent who is the owner of the vehicle in question. Per contra, the contention of the learned counsel for the second respondent is to the effect that M.A.C.A.129/2012 & CO.39/2012 10 since the vehicle in question was having a private car package policy, merely by contending that no additional premium was paid by the second respondent, on receipt of taxi permit, the third respondent cannot wriggle out of the liability to indemnify the second respondent.

"It is clear from the above circulars that the I.R.D.A had clarified that in the case of package/comprehensive policy, the insurance company is liable to indemnify the insured for the injuries or death caused to a person carried in a private car or pillion rider carried in a two-
wheeler and it was not extended further. So, merely because it was a package/comprehensive policy, it will not ipso facto cover the liability of all gratuitous passengers carried in all types of vehicles, including goods vehicles. Unless extra M.A.C.A.129/2012 & CO.39/2012 16 premium is collected by the insurance company for covering the liability of such persons, the insurance company cannot be mulcted with the liability of indemnifying the insured in such cases. In this case, admittedly, the vehicle involved is a goods vehicle and the deceased was a gratuitous passenger carried in the goods vehicle and the liability of such persons was not covered as per the terms of the policy. Under such circumstances, the Tribunal was not justified in making the insurance company liable to pay the amount by way of indemnifying the insured on the assumption that package/comprehensive policy will cover the liability of such persons as well and the finding of the court below to that extent is liable to be set aside."

(Emphasis supplied)

7.In the light of the said decision, the insurance policy involved in this case has to be looked into. In Ext.B5 policy, the limitations of use have been specifically mentioned. The same in so far as it is relevant for the purpose of this case reads thus:-

"The policy covers use of vehicle for any purpose other than: hire or reward."

8.Thus it is evident that in the package policy also it is specifically stated that the policy would cover only use of vehicle M.A.C.A.129/2012 & CO.39/2012 17 for any purpose other than hire or reward. When a person was allowed to travel in a private car for hire or reward, his status can only be that of a gratuitous passenger. In this case in fact, there is no scope for disputing the said case as the very case of respondents 1 and 2 is that the vehicle in question was having only a private car package policy. Though it received a taxi permit that was not properly intimated to the insurer and additional premium to get coverage as a taxi was not paid by the second respondent. True that in the light of the decision in Mohamed Ali's case (supra), it was held that merely the policy in respect of the vehicle in question was a package policy or a comprehensive policy it would not ipso facto cover the liability of gratuitous passengers carried in all types of vehicles. It was further held therein that unless extra premium is collected by the insurance company for covering the liability of such persons, the insurance company cannot be mulcted with the liability of indemnifying the insured in such cases. In this context, the admitted fact is that the vehicle in question was insured only originally as private car and it was subsequently registered as a taxi M.A.C.A.129/2012 & CO.39/2012 18 and though a taxi permit therefor was obtained the said fact was not duly intimated to the insurer and the second respondent had not paid any extra premium required for the purpose of covering the liability of such passengers like the deceased. It is to be noted that the premium payable in respect of a private car and also in respect of a taxi for getting insurance coverage is different. The basic premium for private car is `800/- whereas the basic premium for taxi is `2,330/-. Additionally, in order to have coverage for passengers an additional amount of `350/- per passenger, taking into account the seating capacity also have to be paid. In this case, the second respondent did not have a case that after registering the vehicle in question as a taxi and after obtaining the taxi permit on 20.3.2007, premium in respect of a taxi or additional premium has been remitted. In the light of the factual matrix obtained in this case, we are of the considered view that the finding of the Tribunal that the third respondent is not liable to indemnify the second respondent cannot be said to be a faulty decision which invites an appellate interference. This Court usually orders for pay and recovery in M.A.C.A.129/2012 & CO.39/2012 19 order to ensure payment of the award amount to the claimant without undue delay even in a case where strictly speaking insurance company is not liable to indemnify the insured. In view of the factual matrix obtained in this case as above, we are of the considered view that an order of pay and recovery can be made.