JUDGMENT 1. The instant Appeal is directed against the judgment and award dated 25th June, 2008 passed by learned Chairman, Motor Accident Claims Tribunal, Yavatmal (in short “the Tribunal”) in MACP No. 24/2003, whereby the insurer company/ respondent No.3 herein, was exonerated from joint and several liability to pay compensation awarded to the claimants. 2. It is the grievance of the appellants that the victim Bhaiyalal was travelling as a non-fare paying passenger in the offending motor vehicle Truck bearing Registration No. MH 296655 which had after giving a dash to the roadside tree, turned turtle. In the said truck there were articles of food material and utensils for cooking which were meant for preparation of breakfast and Bhaiyalal was travelling as non-fare paying passenger. It is submitted that the Insurer-Company can not escape the liability for payment of compensation, particularly when the policy cover note was comprehensive and over and above the Act to cover non-fare paying passenger in the offending motor vehicle truck. According to learned Advocate for the appellants, the Insurance company had charged Rs. 100/- as part of basic premium towards legal liability to passengers/ non-fare paying passengers. Under these circumstances, the Tribunal erred in law to exonerate the Insurer company. 3. Learned Advocate for the appellant made a reference to the ruling in K Arun kumar and another vs. Sri Ramdass Motor Transport Ltd. And others : 2008 (ACJ 227) (Andhra Pradesh High Court) ; so also ruling in Subelal and others vs. Phulbhansha and others : 2008 ACJ 231 : 2008 ACJ 231 (M. P. High Court) in order to canvass an argument that if Insurance policy covers nonfare paying passengers and premium is charged towards liability for non-fare paying passengers carried in the motor vehicle then insurer is liable to pay compensation. 4. The insurer though served with notice for final disposal of the appeal at the stage of admission, remained absent. 5. Learned counsel for the appellants further contended that the insurance policy was marked as Exhibit 35 and nobody entered in the witness box on behalf of the Insurer to deny the liability or to oppose the version of the claimants. It is specifically brought to my notice that Exh.35 insurance policy did mention that Rs. 5. Learned counsel for the appellants further contended that the insurance policy was marked as Exhibit 35 and nobody entered in the witness box on behalf of the Insurer to deny the liability or to oppose the version of the claimants. It is specifically brought to my notice that Exh.35 insurance policy did mention that Rs. 100/- was charged as basic premium towards legal liability to non-fare paying passengers and there was evidence of witness Ramdas Dattu Kate who was travelling along with deceased victim with cooking utensils belonging to Bhaiyalal and they were gratuitously travelling as non-fare paying passengers. According to the learned Advocate the evidence was not controverted by the Insurance Company. 6. Since it appears prima facie that the victim was travelling as non-fare paying passenger gratuitously and the insurer had agreed for comprehensive policy over and above the Act as per the cover note Exh. 35, the burden of proof was upon the insurer to prove breach of policy, if any, by leading cogent and convincing evidence and in absence of such evidence, the Tribunal erred in exonerating the insurer. It must be concluded under the circumstances that in view of the policy cover note towards non-fare paying passenger in the offending motor vehicle truck, the Insurer is liable to pay the amount of compensation jointly and severally along with correspondents. The impugned order is, therefore, modified to include the respondent no.3 along with respondents 1 and 2. They all shall be liable jointly and severally to pay the compensation as awarded by the Tribunal. The impugned order is modified accordingly. Needless to state, rest of the contents of the operative order of the learned Chairman shall remain as it. The appeal is allowed to the extent of modification only, with no order as to costs.