JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. S.K. Goswami, learned counsel appearing for the appellant as well as Mr. S.K. Jain, learned counsel for the respondents. There is no representation from the other responds despite due notice from this Court. This is an appeal by the Oriental Insurance Co. Ltd. under section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 25.06.2009 passed by the Learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati in MAC Case No. 779 of 2005 awarding compensation of Rs. 3,66,000/- with interest @ 6% PA from the date of filing of the claim petition till payment payable by the insurer of the offending vehicle. 2. The present Respondents No. 1 to 5 as Claimants filed a claim petition before the Motor Accident Claims Tribunal, Kamrup, Guwahati claiming compensation for death of Late Tankeswar Sarma, the occupant of the vehicle bearing registration No. AS 02 A 6847 (TATA Sumo) who died in a motor vehicle accident that took place on 19.1.2005 due to rash and negligent driving of the said vehicle. Said fact is not disputed in this appeal. We may be mention here that though in the appeal memo the appellant has taken the ground that the Learned Member of the Tribunal considered the monthly income of the deceased as Rs. 3,000/- per month, but the income of the deceased was not proved by the claimants side by examining the person who issued the certificate of income, but the same has not been projected during the course of argument and as such the further appraisal of those findings are not required. 3. Mr. Goswami learned counsel for the appellant has argued only on the point that the appellant insurance company has no liability for payment of the award as directed as the policy insurance is a liability only policy for private car and the policy has no coverage for own damage claim. The findings of the learned tribunal that: "From the policy Ext. C, it is apparent that the insured paid premium of Rs. 210.00 for extra loading, which was certainly for covering the risk of the occupants is not sustainable because the vehicle in the instant case is not a goods carrying vehicle. The findings of the learned tribunal that: "From the policy Ext. C, it is apparent that the insured paid premium of Rs. 210.00 for extra loading, which was certainly for covering the risk of the occupants is not sustainable because the vehicle in the instant case is not a goods carrying vehicle. Evidently the deceased was neither a fare paying passenger nor the vehicle was taken on hire by him and as such there was no question of violation of policy condition. Since the insured has paid extra premium for the occupants, the insurer cannot escape the liability" and such findings of the Learned Member of the Tribunal directing the insurer of the vehicle for payment of compensation is perverse and unsustainable and liable to be set aside as the policy was act only policy. 4. In support of his contention Mr. Goswami has referred the decision of this High Court reported in 2012 (5)GLT 129 New India Assurance Co. Ltd v. Uttra Phukan & Ors, wherein, it is held that the appellant had no liability to cover risk of the gratuitous occupants of a private vehicle which was under coverage of the act policy. The alternative for the injured or the dependent of the deceased is to recover the damages from the owner of the vehicle, if so desire. 5. It was next contended that as the deceased was an occupant without payment of any fare and the vehicle was also a private vehicle and as per the terms and condition of the policy risk of the occupant is not covered as premium was not paid for the occupant as such the insurance company is not liable to indemnify the owner of the vehicle for the death of the occupant of the said vehicle. 6. Mr. Goswami in support of this contention referred another decision of this High Court reported in 2006(Supp) GLT 637: [2007] 1 GLR 383 Union of India v. Mumtaz Ahmed, wherein, para 12 held as under: "12 Turning to the question as to whether the appellant, as owner of the vehicle, is liable to pay any compensation to the claimant on the ground that the claimant was a gratuitous passenger, what may be noted is that from the evidence on record, it is abundantly clear that the claimant had, indeed, travelled and met with the accident without making any payment therefore. The claimant was, thus, undoubtedly, a gratuitous passenger. However, when owner of a vehicle lifts any passenger on the road, he remains liable to make payment of compensation for the injuries, which may be sustained by such an occupant of the vehicle. The law only exempts an insurer from indemnifying the owner of the vehicle for the death of, or injury caused to, a gratuitous passenger unless premium has been obtained, in this regard, by the insurer. Viewed thus, it is clear that the appellant, as owner of the vehicle, cannot disclaim the liability on the ground that the claimant was a gratuitous passenger". 7. Mr. Goswami also referred the decision of Gauhati High Court reported in 2011(4) GLT 260 Oriental Insurance Co. Ltd. v. Homi Rai & Anr. 8. Mr. Goswami has further contended that in the case of General Manager, United India Insurance Co. Ltd. v. M. Laxmi & Ors reported in 2008 STPL (LE) 40882 SC has set aside the decision of Hon'ble Andhra Pradesh High Court and restored the decision of the Motor accident Claims Tribunal, Hyderabad where in held that the pillion rider of the scooter is a gratuitous passenger and hence not a third party and cannot claim compensation from the Insurance Company under Act Policy. 9. In another decision referred by the learned counsel for the Appellant reported in 2001 STPL(Com) 373 SC Dr. T.V. Jose v. Chacko P.M. @ Thankachan & Ors. in para 19 Hon'ble Supreme Court has observed that a third party policy does not cover liability of gratuitous passengers who are not carried for hire or reward. 10. Learned Counsel for the Respondent Mr. S.K. Jain has contended that the policy copy reveals that additional premium was paid by the insured, so, the risk of the occupant covered under the Act Policy also. In support of his contention he has relied upon the decision of Hon'ble Supreme Court reported in (2014)14 SCC 243 Sanjeev Kumar Samrat v. National Insurance Co. But the said case is in relation the goods vehicle where the truck was hired for carrying of rod, iron and cement by one Durga Sing who was travelling with goods along with two laborer and the vehicle met with an accident and all of them died. In the said case Hon'ble Supreme Court has held that the insurer is liable for the employees engaged by the hirer. In the said case Hon'ble Supreme Court has held that the insurer is liable for the employees engaged by the hirer. But the present case in respect of private vehicle and the status of the deceased was a simple occupant as such the same is not applicable in the present case. 11. In the case of New India assurance Co. Ltd. v. Jiban Saha & Anr. reported in 2001(2)GLT 137 referred by the learned counsel for the respondent, it was held by the Hon'ble High court that after the commencement of the Motor Vehicle Act, 1988, gratuitous passengers or any passenger travelling in a lorry or any vehicle not authorized other wise to carry passengers are also entitled to be compensated by the insurance company unless it is proved to the Satisfaction of the learned tribunal that the accident occurred only due to carrying of the aforesaid gratuitous or unauthorized passengers. 12. Mr. Jain also referred the decision of Kerala High court reported in 2000(1) TAC 687(Ker) Oriental Insurance Co. Ltd. Vs, Ajay Kumar, wherein, held that the a gratuitous passenger in a private vehicle also covered by Act Policy under section 147 of the Motor Vehicle Act. But in the case of National Insurance Co. Ltd. v. Balakrishnan & Anr. reported in (2013) SCC 731, which is referred by the learned counsel for the Respondent, the Hon'ble Supreme Court has observed that in case of gratuitous passenger travelling in motor vehicle meeting with accident liability is fastened on the insurer if the policy is comprehensive/Package policy. 13. In another decision (2009)2 SCC 417 New India Assurance Co. Ltd. v. Sadanand Mukhi & Ors. referred by the learned Counsel for the Respondent which also in favour of the appellant. 14. In this case, the appellant side in support of their case examined one Subhash Chandra who is the Administrative Officer of the Appellant Insurance Company as D.W. 1 who has proved the concerned policy as Ext C which reveals that the policy is Liability only Policy in respect of a Private Car bearing registration No. AS 02 A/6847 TATA Sumo which was the offending vehicle. 15. On consideration of the evidence on record it reveals that the policy Ext. C is Liability only Policy which covers the risk of the third party and the owner driver and the premium was paid for basic liability Rs. 700/- and Rs. 15. On consideration of the evidence on record it reveals that the policy Ext. C is Liability only Policy which covers the risk of the third party and the owner driver and the premium was paid for basic liability Rs. 700/- and Rs. 100/- for PA covering the risk of owner-driver. Though the seating capacity of the vehicle was for 9 persons but nothing appears that the premium was paid covering their risk of the occupants. Though Rs. 210/- was paid for extra loading but it does not indicate that it was taken on the ground of covering the risk of the occupants. Under such circumstances of the case and in the light of the above referred decision of the of the Hon'ble Supreme Court I have no hesitation to hold that the Insurance Company is not liable to indemnify the owner of the vehicle but the owner cannot escape for his liability for the death of the occupant. 16. Accordingly the appeal is allowed. Appellant insurance company is not liable to pay the compensation. Instead the owner of the vehicle being liable to pay the same is directed to pay the amount of compensation as indicated in the award. Return the LCR along with a copy of this judgment to the Court below.