JUDGMENT : K. Kannan, J. The appeal is against the dismissal of the petition for compensation for death of a passenger in the car that belonged to the son of the deceased. The accident was said to have taken place when the son, who was himself the driver, in a bid to steer clear of a cow, saved the cow crossing the road but caused the death of his father by dashing into a tree. The case was dismissed on a finding that there had been inconsistent versions about how the accident had taken place. The Tribunal also found that no claim is possible against the insurer for a passenger in a car. The driver that dashes against a tree and causes death must be taken as having been negligent, for, it purely depicts a res ipsa loquitur situation. Counsel for the insurance company points out to three different versions, namely, that the accident took place when a cow was crossing the road and the driver dashed against the tree; the second version was that what was entered in the DDR that the accident had taken place but it was by chance; and the third version was that no one knew how the accident took place but there was a cow crossing the road. All these versions, taken separately or conjointly, lead to only one conclusion that the driver had been negligent. Nobody takes a chance to die by dashing against a tree. By the very nature of things it must be taken as a poor ability to drive and a negligent conduct that resulted in death. 2. A gratuitous passenger in a vehicle will still obtain a full policy coverage if the policy of the insurance is a package policy. There have been circulars issued by Insurance Regulatory Authority to all insurers to enlist the coverage of even a passenger in the vehicle whenever a package policy is taken. The Insurance Tariff Committee issued a circular after the decision of the Supreme Court in Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. There have been circulars issued by Insurance Regulatory Authority to all insurers to enlist the coverage of even a passenger in the vehicle whenever a package policy is taken. The Insurance Tariff Committee issued a circular after the decision of the Supreme Court in Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, (1977) 2 SCC 745 , directing all the insurance companies to include as package policy the following clauses : "M.V. No. 1 of 1978 Bombay 18.3.1978 issued by Tariff Committee: In order to make this intention clear, insurers are requested to amend clause (a) of section II of the standard private car policy by incorporating the following words after the words 'death of or bodily injury to any person' appearing therein: 'Including the occupants carried in the motor car provided that such occupants are not carried for hire or reward' I am accordingly to request insurers to make the necessary amendment on sheet 38 of the India Motor Tariff pending reprinting of the relevant sheet. All existing policies may be deemed to incorporate the above amendment as the above decision is being brought into force with effect from 25.3.1977. (4) The circular makes it clear that the intention was never to deny cover for liability to occupants in a private car under a comprehensive policy. However, in view of the Supreme Court judgment, lest it be applied even for a comprehensive policy, it was decided to amend the policy to clarify and expressly hold out that such occupants are covered under a comprehensive policy. Accordingly, the policy wording in section II was modified as follows: '...company will indemnify the insured ...against all sums which the insured shall become legally liable to pay in respect of: (i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured'." (Emphasis added) 3. The insurance company admits that there was package policy and in terms of the circular the liability for a passenger must be taken as fully covered, for, no negligence can be attributed to a person who died who was merely a passenger in a vehicle and the liability cannot therefore be merely taken on the basis of 'no fault liability' under section 140 of the Motor Vehicles Act, 1988, but the compensation would require to be assessed on just basis under section 166 of the Motor Vehicles Act, 1988. 4. The deceased was said to be a hardware agent and the contention was that he was earning Rs. 10,000. There were three witnesses to speak about his income. He was 45 years of age and I will take, in the absence of any documentary evidence, the average income to be Rs. 5,000 and tabulate the compensation as under: The amount in excess of what has already been granted by the Tribunal shall attract interest at 7.5 per cent per annum from the date of petition till the date of payment. The amount already received by claimants shall be set off against the entitlement assessed by this court. 5. Counsel for the respondents has also an argument that there was no valid driving licence. The exclusion of liability on an alleged violation of terms of policy shall be proved only by the insurer. I have no details that there have been any violation of terms of policy. Non-consideration of the issue does not really fetter the entitlement for the claimants and if the violation of terms of policy is not shown by the insurer, there is no question of absolving the insurer from the liability. The award of Tribunal is modified and appeal is allowed to the above extent.