JUDGMENT : RAMALINGAM SUDHAKAR, J. 1. This is a fatal accident of the year 2009. 2. The accident happened in this case on 07.08.2009, when the deceased Raja Ishtiauq Syed was travelling in the offending vehicle bearing registration No. JK03-9530, driven by respondent no. 2, rash and negligently, collided with a Truck coming from the opposite direction, as a result of which deceased sustained grievous injuries and died on spot. 3. The Appellant-Insurance company, filed the instant appeal on the count that they are not liable to compensate the claimants as the case is not covered by the policy, issued in respect of the offending vehicle. It is pleaded that deceased was travelling in Maruti Car (offending vehicle) as a gratuitous passenger which was driven by Aijaz Ahmad in a rash and negligent manner. The finding of the learned Tribunal is not disputed by any person. 4. The Tribunal in issue No. 3 considered the plea of no liability in the following manner:- Issue No. 3 & 5; Whether the deceased while travelling in the care as occupant was not insured for the risk as no additional premium was paid by respondent No. 2 to cover the insurance of the occupant hence company is not liable to pay the compensation? Whether the claim petition is liable to be dismissed for non-joinder of necessary parties? The issues are interlocutory with each other. Therefore both the issues taken together. In support of these issues the company has relied upon the policy of insurance as the deceased is not the 3rd party as envisaged under the policy and that he was an occupant of the car. In support of these issues the company has also examined Mohammad Abass Assistant Branch Manager of NIC who in his statement has stated that the company is not bound to reimburse the insurer as the additional premium has not been paid to cover the occupants of the car. He has further stated that the insurance policy falls in category 'A' and only the driver of the subject matter that the vehicle is covered under the policy. The insurance policy shows that the insured has paid an amount of Rs. 753/- as premium as the policy of insurance is 3rd party insurance. As per the evidence the petitioners have proved that the deceased was travelling in the offending vehicle when the same was collided with a truck. The insurance policy shows that the insured has paid an amount of Rs. 753/- as premium as the policy of insurance is 3rd party insurance. As per the evidence the petitioners have proved that the deceased was travelling in the offending vehicle when the same was collided with a truck. The accident has been caused due to the composite and contributory negligence of the two drivers. The petitioners who are the legal heirs of the deceased have chosen to file the claim petition against the owner of Maruti bearing registration No. 9530/JK03. He cannot be deprived of the compensation on the plea that he was an occupant of the car. In view of the nature of the accident, he was a 3rd party as he was neither an employee of the insured nor he was carried for hire or reward. The insurance company is liable to 3rd party if the evidence on record rules out the fact that he was carried for hire or reward. In this regard I am fortified the judgment 2007 (1) Accidents Judicial Reporter-II 2069 known as Oriental Insurance Company Ltd. v. Nairikanti Narendra Babu and Ors.. 5. The learned Tribunal held that the deceased was a gratuitous passenger in the vehicle which collided with the vehicle coming from opposite direction. The Tribunal recorded the statement of Mohammad Abass, Assistant Manager of National Insurance Company who clearly stated in his examination in chief that insurance policy does not reflect the payment of additional premium to cover the occupants of the car. It is a category 'A' policy which covers the drive of the offending vehicle alone. The witness also deposed that the insurance policy does not cover a gratuitous passenger. 6. Learned counsel for the Appellant-Insurance company further points outs that the Tribunal has misconstrued the issue by relying upon the decision (Supra) quoting extensively paras 11 to 16 and come to the conclusion that gratuitous passenger would come under the meaning of 3rd party or any person in terms of Section 147 of Motor Vehicles Act, 1988. 7. The record of the Tribunal was produced and perused. On perusal of the original policy which is effective from 28.05.2009 at 11.45 to midnight of 21.05.2010, in respect of Maruti car bearing registration No. JK03-9530. The premium to this case is OWD+TP = Rs. 695 with service tax etc. In total Rs. 753/- was paid as premium. 7. The record of the Tribunal was produced and perused. On perusal of the original policy which is effective from 28.05.2009 at 11.45 to midnight of 21.05.2010, in respect of Maruti car bearing registration No. JK03-9530. The premium to this case is OWD+TP = Rs. 695 with service tax etc. In total Rs. 753/- was paid as premium. 8. According to Mr. Kawoosa, learned counsel for the Appellant-Insurance company no premium was paid for the passenger of the vehicle. Only the driver is covered. 9. Learned counsel for the claimants relied on the various decisions. In New India Assurance Co. Ltd. v. Rula & Ors. (2000) 3 Supreme Court Cases 195. The decision arose out of an issue where premium for policy was paid through cheque which wad dishonoured and communicated to the owner, stating that the premium has not been received. The premium was paid in cash later. In the meanwhile, it appears that accident took place and the driver died. The widow and minor sons filed the claim petition which was denied by the appellant-insurance company on the ground that insurance premium was not paid and received. In that context Hon'ble Supreme Court held that in respect of 3rd-party namely, driver of the truck, the insurance company was liable to pay as there was a valid policy issue though premium was not paid. It held that third party had a right to make a claim against the insurance company. However, that is not the fact in the present case because in this case, no premium has been paid for the gratuitous passenger. 10. The next case relied upon is AIR 2011 Supreme Court 1234, Kusum Lata & Ors. v. Satbir and Ors. In this case the dispute was on the validity of license and the Hon'ble Supreme Court held that the insurance company has to pay and then recover it from the owner of the vehicle. This judgment does not also apply to the facts of the present case. 11. Learned counsel for claimant also relies upon 2003 SCC 195 to contend that an obligation is imposed on the Insurance Company to settle the claimants on third-party in terms of the Act. This judgment does not also apply to the facts of the present case. 11. Learned counsel for claimant also relies upon 2003 SCC 195 to contend that an obligation is imposed on the Insurance Company to settle the claimants on third-party in terms of the Act. There is no dispute on this preposition but that does not make the Insurance Company liable because Insurance Company is bound by the terms of the contract and even as per requirement of section 147 (5) of the Motor Vehicle Act. 12. On the contrary the Hon'ble Supreme Court in New India Insurance Company v. Bismillah Bia & Ors. (2009) 5 SCC 112 , has held in paragraph 9 & 10 as follows :- "9. Even otherwise, the Insurance Company cannot be held liable to pay compensation to the claimants in view of the decision of this Court in Oriental Insurance Co. Ltd. v. Sudhakaran K.V. wherein this Court Opined: (SCC p.433, Paras 17-18) "17. This Court in a catena of decision has categorically held that a gratuitous passenger in a goods carriage would not covered by a contract of insurance entered into by an between the insurer and the owner of the vehicle in terms of Section 147 of the Act. 18. A Division Bench of this Court in United India Insurance Co. Ltd. v. Tilak Singh extended the said principle to all other categories of vehicles also, stating as under: (SCC p. 412, Para 21) '21. In our view, although the observation made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death or bodily injury to a gratuitous passenger.' 10. It was held: (Sudhakaran case, SCC p. 433, para 20-22) "20. The Provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third-party risk. A contract of insurance which is not statutory in nature should be construed like any other contract. 21. The Provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third-party risk. A contract of insurance which is not statutory in nature should be construed like any other contract. 21. We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third-party risk and not the risk of the owner or a pillion rider. An exception in the contract of insurance has been made, i.e., by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle. 22. The Contract of Insurance did not cover the owner of the vehicle, certainly not the pillion rider. The deceased was travelling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not (sic) be a member of the family, a friend or other relative. In the sense of the terms which is used in common parlance, she might not be even a passenger. In view of the terms of the contract of insurance, however, she would not be covered thereby." 13. The Supreme Court has clearly held and reaffirmed the decision that gratuitous passenger in any vehicle would not be entitled to seek compensation under the policy unless specific premium is paid in this behalf. In the present case, policy covers the 3rd party risk as well as driver of the offending vehicle. Admittedly the deceased in this case was a gratuitous passenger and the policy does not cover such a claim. 14. In this view of the matter, the Tribunal has failed to follow the decision of the Hon'ble Supreme Court on this issue. It has misconstrued the plea, holding that the Insurance Company is liable to pay the claimants. The reasoning of the Tribunal is erroneous. There is no issue raised on the quantum of compensation. The same is confirmed. 15. Accordingly the appeal is allowed and the liability of the Insurance Company stands excluded in view of the fact that no additional premium was paid to cover the passenger of the motor vehicle involved in the accident. The owner is therefore liable to compensate the claimant.