JUDGMENT 1. United India Insurance Company Limited is before this Court being aggrieved by judgment and award dated 7.8.1989passed by the Motor Accident Claims Tribunal (Aux.) Panchmahals at Godhra (hereinafter referred as “the Tribunal” for short) in Motor Accident Claim PetitionNo.361 of 1985 whereby the Honourable Tribunal was pleased to partly allow the claim petition and ordered that “The applicants do recover Rs.1,12,000/- (Rupees one lac, twelve thousand only) with proportionate costs and interest at the rate of 12% per annum on that amount from the date of the application till realisation from all the opponents who are jointly and severally liable.” (emphasis supplied). 2. Learned advocate Mr. Mazmudar for the appellant Insurance Company invited attention of the Court to the grounds on which the said judgment and award passed by the Honourable Tribunal is challenged. He invited attention of the Court to ground Nos.3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14.These grounds are reproduced for ready perusal. “3. That the Learned Tribunal ought to have come to the conclusion that as the vehicle involved in the Accident is a Private Carrier, none, except the employees of the opponent no.2, can travel by the said Private carrier. 4. That the Learned Tribunal ought to have come to the conclusion that as per the contract in the Policy of the said Vehicle, also, none except the employees of the opponent no.2 can travel by the said Private Carrier. 5. That the Learned Tribunal ought to have come to the conclusion that the Policy of the above vehicle does not cover use for hire or reward. 6. That the Learned Tribunal ought to have come to the conclusion that as per condition of the Insurance Policy, the above Vehicle, was to be used only under a “Private Carriers” Permit within the meaning of the Motor Vehicles Act, 1939. 7. That the Learned Tribunal ought to have come to the conclusion that when the Policy of Insurance specifically provided the limitation as to use, the Insurance Company is not liable to pay compensation. 8. That the Learned Tribunal committed a graver or in law and in facts in holding that in this case, on perusal of the policy, the limitation does not mention any thing about the bar of hire or reward. 9. 8. That the Learned Tribunal committed a graver or in law and in facts in holding that in this case, on perusal of the policy, the limitation does not mention any thing about the bar of hire or reward. 9. That the Learned Tribunal committed a graveerror in law and in facts in observing in para 20of the judgment that in the circumstances, the presumption may arise that the policy includes passengers for hire or reward. 10. That the Learned Tribunal ought to have come to the conclusion that when there is a specific condition in the above policy of Insurance that the above vehicle is to be used only under a Private Carrier's Permit within the meaning of the Motor Vehicles Act, 1939, it means that the said vehicle was not to be used for hire or reward. 11. That the Learned Tribunal ought to have come to the conclusion that by using the said vehicle for hire and reward, a breach of the condition of the policy has been committed. 12. That the Learned Tribunal ought to have appreciated that the above Private carrier was insured with limitations as to use as above. 13. That by the Learned Tribunal ought to have appreciated that by the above limitation clause, use of the Private Carrier was prohibited for hireor reward. 14. That the Learned Tribunal ought to have appreciated that the Insurance Company cannot beheld liable if the death of a passenger carried in a Private Carrier for hire or reward is caused in an accident due to the negligence of its driver, when the Private carrier is to be used only undera Private carrier's Permit.” 2.1 Learned advocate for the appellant Insurance Company submitted that the Honourable Tribunal has erred in passing the judgment and award in light of the series of decisions on this issue. One of the decisions is referred to in ground No.17 of the appeal memo which is reproduced for ready perusal. “17. That the Learned Tribunal erred in constructing the Judgment in the case of “Dashrathlal Jesingbhai Brahmbhatt” V/s. Bai Ganga”, reported in 1985 A.C.J. 410 (412) (D.B.)(GUJARAT).” 2.2 Learned advocate for the appellant invited attention of the Court to paragraphs 17, 18, 19 and 20 of the judgment. The same are also reproduced for ready perusal. “17. “17. That the Learned Tribunal erred in constructing the Judgment in the case of “Dashrathlal Jesingbhai Brahmbhatt” V/s. Bai Ganga”, reported in 1985 A.C.J. 410 (412) (D.B.)(GUJARAT).” 2.2 Learned advocate for the appellant invited attention of the Court to paragraphs 17, 18, 19 and 20 of the judgment. The same are also reproduced for ready perusal. “17. So far as liability is concerned, the learned Advocate Mr.N.Z. Patel appearing for the Insurance Co. vehemently argued that in this case the Insurance Company is not liable to satisfy the claim of the applicant because the policy of the Insurance Company does not cover the passengers for hire or reward because the vehicle in question is a private carrier and by virtue of its contract in this vehicle except who are the employees of the opponent No.2 cannot travel and in support of his contention reliance is placed on the Judgment of “Dashrathlal Jesingbhai Brahmbhatt vs. Bai Ganga and others” reported in 1985(2) T.A.C.237,wherein the Honourable High Court has held that as per section 95 of the Motor Vehicles Act, the policy does not cover the use for hire or reward and if the particular vehicle is required to be used only for social, domestic and pleasure purpose for insured's business. In that case, the Insurance Company is not liable to pay compensation. So in this case, also this being the private vehicle, the Insurance Company is not liable to indemnify the amount of award and in that circumstances, the opponent Nos.1 and 2 are only liable to satisfy the amount of award. 18. Against this submission, Mr.K.A.Parikh tried to distinguish the Judgment of Dashrathlal, Supraand he has invited my attention on para 7 of the Judgment wherein the following observations are made : “Limitation as to use : Use only for social domestic and pleasure purposes and for the insured's business. The policy does not coveruse for hire or reward or for organizedracing or making reliability trial speed testing, carriage of good (other than samples) in connection with any trade or business or use for any purpose in connection with the motortrade.” 19. Then, he has invited my attention to Ex.38/1which is the policy issued by the United India Insurance Company in favour of the vehicle No.GRK/4673. He further invited my attention on the limitation clause which reads as under :- “Limitation as to use. Then, he has invited my attention to Ex.38/1which is the policy issued by the United India Insurance Company in favour of the vehicle No.GRK/4673. He further invited my attention on the limitation clause which reads as under :- “Limitation as to use. Use only under a private carrier's permit within the meaning of the Motor Vehicles Act, 1939. “Policy does not cover:- 1. Use for the organised racing pace-making reliability trial or speed testing. 2. Use whilst drawing a trailor except the to wings of anyone disabled mechanically propelled vehicle. Warranted that the within described vehicle is insured for the licensed carrying capacity and that the weight of the goods carried therein shall at time exceed the licensed carrying capacity.” After showing this clause, he vehemently submitted that in this policy, there is no where mentioned that the policy does not cover the use for hire or rewards and further more this policy is a commercial vehicle policy, though of course, it is for private carrier but it does not mean that this policy does not cover the risk if the owner allow the passenger for hire or reward. In support of his contention, he further relied on the case of “Gujarat State Road Transport Corporation Vs. Halubhai Manad Wife of Deceased Kana Kachara & others” reported in XXI GLR at page 400, wherein the Honourable High Court has held as under:- “If passengers are carried gratituously in a goods vehicle the insurance company would not be liable to answer the claim of compensation arising out of injuries caused to such passengers. If on the other hand passengers are carried for hire or reward in the good struck, the insurance company will be answerable for the claims arising out of the injuries caused to such passengers as result of accident. In the present case it is clearly established that both the deceased were passengers for hire or reward. Thus, it can be said that the deceased passengers in question were carried in the goods truck on payment. They were also passengers who has hired the truck in question for carrying their milk cans. In the present case it is clearly established that both the deceased were passengers for hire or reward. Thus, it can be said that the deceased passengers in question were carried in the goods truck on payment. They were also passengers who has hired the truck in question for carrying their milk cans. Thus it can easily be seen that both the deceased were passengers who were carried in the truck for hire or reward and consequently under the law the insurance company would remain liable to satisfy the claim amount payable to the concerned claimants.” Mr.K.A.Parikh submits that in view of the above Judgment, the Insurance Company is liable to indemnify the claim. Therefore, all the opponents are jointly and severally liable to pay compensation to the claimant. 20. In my view the case of Dashrathlal's Casesupra will not help to Mr.N.Z.Patel because in that case, the policy of Insurance Company clearly barred the use for hire or reward of passengers. While in this case on perusal of the policy, the limitation does not mention anything about the bar of hire or reward. In that circumstances, presumption may arise that the policy includes passengers for hire, or reward and in that circumstances, the Insurance Company is liable to indemnify and in view of the Judgment of Gujarat State Road Transport supra, “if the passengers are carried for hire or reward, the Insurance Company will be answerable for the claim arising out of injuries or death caused to such passengers as are suit of such accident. Hence, I hold that the opponent No.3, the Insurance company is also answerable for the claim. Admittedly the accident has occurred due to the rashness and negligence on the part of opponent no.1, who is the driver of the vehicle, owned by the opponent no.2 and the opponent no.3 being the insurer of the said vehicle, shall also be liable to satisfy the claim. Therefore, all the opponents are jointly and severally liable to pay compensation to the claimant. So is my finding to issue no. 2.” 2.3 Learned advocate for the appellant then invited attention of the Court to the policy in question which is produced before the Honourable Tribunal at Mark 27/1. On perusal of the record, it is not clear as to whether the policy was exhibited or not. So is my finding to issue no. 2.” 2.3 Learned advocate for the appellant then invited attention of the Court to the policy in question which is produced before the Honourable Tribunal at Mark 27/1. On perusal of the record, it is not clear as to whether the policy was exhibited or not. 2.4 Learned advocate for the appellant invited attention of the Court to clause titled as 'limitations as to use'. The same is reproduced as under. “Limitations as to use : Use only under a PRIVATE CARRIER'S permit withinthe meaning of the Motor Vehicles Act, 1939. “Policy does not cover:- (1) Use for the organised racing pace-making reliability trial or speed testing. (2) Use whilst drawing a trailor except the towing of any one disabled mechanically propelled vehicle. Warranted that the within described vehicle is insured for the licensed carrying capacity and that the weight of the goods carried therein shall at no time exceed the licensed carrying capacity.” 2.5 Learned advocate for the appellant then invited attention of the Court to the definition of the term 'private carrier' in clause 22 of Section 2 of the Motor Vehicles Act, 1939 (hereinafter referred as “the Act” for short). 2.6 Learned advocate for the appellant submitted that clause 'limitations as to use' did specifically mentions that insurer was permitted to use the vehicle only under a PRIVATE CARRIER'S permit. That being so, taking into consideration the definition of the word 'permit' under clause 20 of Section 2 of the Act and taking into consideration the definition of the term 'private carrier', it becomes clear that the vehicle could not have been used by the 'insured' for hire and reward. Learned advocate for the appellant submitted that on this point, the Honourable Tribunal committed an error in observing that “......In my view the case of Dashrathlal's case supra will not help to Mr.N.Z.Patel because in that case, the policy of Insurance Company clearly barred the use for hire and reward of passengers.” Learned advocate for the appellant submitted that it is not necessary to use a particular phrase 'use for hire and reward of passengers is barred' only. Learned advocate for the appellant submitted that the use of the words 'use only under a private carrier permit.....' and limitations as to use clause in the policy bring the same effect because it is very clear that private carrier is an owner of a transport vehicle who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport. Learned advocate for the appellant submitted that once that is the definition of the term 'private carrier' and the term 'permit' define all different types like 'contract carriage permit', 'stage carriage permit', 'private carrier permit' or 'public carrier permit' and makes it clear that the use of the vehicle for hire or reward of passengers was not permitted. 2.7 Learned advocate for the appellant invited attention of the Court to the decision of the Honourable Apex Court in the matter of Mallawwa (SMT) and others Vs. Oriental Insurance Co.Ltd. and others, reported in (1999) 1 SCC 403 . In view of the fact that the law on the point is well settled, no further discussion is required about this judgment. That being so, learned advocate for the appellant submitted that the judgment and award passed by the Honourable Tribunal be suitably modified and it be provided that it is original opponent Nos.1 and 2 who are jointly and severally liable to satisfy the award passed by the Honourable Tribunal. 3. Learned AGP Mr.H.K. Patel for respondent No.6 is not able to dislodge the aforesaid submissions more so because the seare all submissions which are on the point of law and the law on the point is very well settled by series of judgments of the Honourable the Apex Court. 4. In the result, the First Appeal is allowed. The judgment and award passed by the Motor Accident Claims Tribunal(Aux.) Panchmahals at Godhra in Motor Accident Claim Petition No.361 of 1985 dated 7.8.1989 is accordingly modified. The judgment and award shall read that, 'it is original opponent Nos.1 and 2 who are jointly and severally liable to 0satisfy the award'. 5. In the result, the First Appeal is allowed. The judgment and award passed by the Motor Accident Claims Tribunal(Aux.) Panchmahals at Godhra in Motor Accident Claim Petition No.361 of 1985 dated 7.8.1989 is accordingly modified. The judgment and award shall read that, 'it is original opponent Nos.1 and 2 who are jointly and severally liable to 0satisfy the award'. 5. At this juncture, the learned advocate for the appellant requested that original opponent No.2 be directed to deposit the amount of the award in terms of the award in a time frame with a permission to the present appellant to withdraw that amount after the same is deposited. Requestis found reasonable. Opponent No.2 is directed to deposit the amount as per the award within six weeks from the date of receipt of the copy of this judgment and order. Once that amount is deposited, the appellant is permitted to withdraw the same by filing appropriate application from the Honourable Tribunal.