- (1.) In spite of service of notice of this appeal upon the respondent No. 2, the owner of the vehicle, no one is appearing on behalf of him.
(2.) The short question, that arises for consideration, in this appeal, is whether, in view of the provisions of Section 149(2) (i) (a) of the Motor Vehicles Act, 1988 (hereinafter called as the said Act) where the offending vehicle was insured as a private vehicle with limited use by the insured for his personal, domestic, pleasure and own business purposes, the insurer could be made liable for payment of compensation for the death of a person who was travelling in the said vehicle upon payment of fare.
(3.) In this case the fact of the accident as occurred on 10.6.1999 was proved in evidence. The appellant-Insurer before the Claims Tribunal took a specific plea that the offending vehicle was insured with the Insurer for the use by the owner as his private car and not for carrying passengers on hire. In support of such plea, the appellant Insurer had filed the certificate of insurance which proved the fact that the offending vehicle was insured for being exclusively used for private purposes as above. From the said certificate of insurance, it also does not appear that the said offending vehicle was insured for covering the liabilities of any person who might or may be carried for hire or reward. At the trial it was extracted from the victim himself during his cross-examination by the appellant-Insurer that he was travelling in the said vehicle on the fateful date upon payment of fare :- "A Division Bench of Himachal Pradesh in the case of (New India Assurance Co. Ltd. v. Anil Kr. & Ors.) reported in 2001 (2) T.A.C.. 35, has held as under: "After analysing the factual and legal position for the purpose of deciding the present case, the vehicle is not covered by a permit to ply for hire or reward and it was a private vehicle not carrying any passenger for hire or reward. It is the owner of the vehicle herself who gave the vehicle/allowed the vehicle to be used as taxi to carry passengers for hire or reward and, therefore, it cannot be said that she has not committed breach of condition of the policy which is the same as the one not permitted by the statutory provisions. The appellant-company has established that the breach was on the part of the insured and we find that it was the insured who was guilty of violating the terms or infringement of the contract by handing over a private vehicle for using it as taxi for hire or reward which is a fundamental breach of specified condition of the policy and the exclusion clause under Section 96 (2) (b) (i) (a) shall expressly apply in the case in hand denying the respondent owner of the vehicle indemnification by the appellant company.";