JUDGMENT : P.T. ASHA, J. PRAYER: Petition filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the decree and judgment dated 28th day of September 2018, made in M.C.O.P. No. 699 of 2012, on the file of Motor Accident Claims Tribunal (Sub Court), Sangagiri and be pleased to dismiss the above claim and thus render justice. 1. The issue involved in the above appeal is whether the petitioner who had travelled as an unauthorized passenger in a goods vehicle can claim compensation from the owner of the vehicle in which he has travelled for the injuries sustained by him in the accident that had occurred while the petitioner was so traveling. The facts, in brief, are as follows. The parties herein below are referred to as the same ranking as before the Lower Court (Sub Court). 2. The petitioner/claimant would submit that he is a 22 year old power loom mechanic earning a monthly income of Rs.7,500/-. On 20.09.2012 he and his four friends had travelled in a Tata Ace vehicle bearing registration no. TN 52 B 9331 belonging to the 1st respondent and insured with the 2nd respondent, for visiting a temple. In the claim petition the said claimant would state that he had visited the Kalwadangam Temple. After taking a bath in the river Cauvery and worshiping at the temple he was returning in the Tata Ace vehicle bearing registration No. TN 52 B 9331. The vehicle was driven by the driver in a rash and negligent manner and in high speed. The said vehicle was proceeding from west to east on the Kalvadangam to Edapedi main road. The driver who was driving the vehicle rashly and negligently and at an uncontrollable speed applied a sudden brake as a result of which the vehicle had skidded on the left side of the main road and resulted in the accident. On account of the accident the petitioner was seriously injured in his right elbow, left shoulder, right ankle and right foot etc. He was immediately admitted in the Edapadi Government Hospital and since there was a fracture he was taken to the Neurotech Foundation at Salem and admitted there. 3. The petitioner/claimant would submit that he had taken treatment from 23.09.2012 till 05.10.2012 as an inpatient and had expended a sum of over Rs.1,00,000/-. He was immediately admitted in the Edapadi Government Hospital and since there was a fracture he was taken to the Neurotech Foundation at Salem and admitted there. 3. The petitioner/claimant would submit that he had taken treatment from 23.09.2012 till 05.10.2012 as an inpatient and had expended a sum of over Rs.1,00,000/-. By reason of the accident he was unable to walk, sit, lift weight etc. He would submit that the accident had occurred only on account of the rash and negligent driving by the driver of the Tata Ace and, he has to be compensated with a sum of Rs.2,00,000/-. 4. The defence by the 2nd respondent/insurance company was that the petitioner is an unauthorized passenger in the vehicle and therefore, the insurance company is not under any liability to compensate him as per the Judgment reported in National Insurance Co. Ltd. vs. Annappa Irappa Nesaria and Others, 2008 ACJ (2) 721. 5. However, the Tribunal below has proceeded to award compensation of a sum of Rs.2,00,000/- to the petitioner and directed the insurance company to pay the compensation and recovered it later from the 1st respondent/owner of the vehicle. Challenging the above award the insurance company is before this Court. 6. Mr. Vinod appearing on behalf of the insurance company would submit that the case of the petitioner is that he is a power loom mechanic, however the accident has taken place when he had travelled in the goods vehicle to visit temple. The said vehicle is not a passenger vehicle. That apart, the petitioner who had come forward with a claim statement that he was on a visit to the temple along with his friends and that they had a bath at Cauvery River and then worshiped at the temple, had changed his version in his deposition. In his deposition, the petitioner would contend that he had gone to immerse the Vinayagar statue and therefore he had hired the vehicle for carrying the Vinayagar idol. Therefore, the counsel would submit that the entire claim appears to be a concocted one. Be that as it may, since the petitioner is an unauthorized passenger the insurance company cannot be held liable as it is not a case of the violation of the policy condition but it is a case of the violation of the provisions of the Act, which prohibits passengers being carried in a goods vehicle. Be that as it may, since the petitioner is an unauthorized passenger the insurance company cannot be held liable as it is not a case of the violation of the policy condition but it is a case of the violation of the provisions of the Act, which prohibits passengers being carried in a goods vehicle. He would rely on the judgments reported in Branch Manager, United India Insurance Co. Ltd. Branch Office, Dharmapuri Town vs. Nagammal and Others, 2009 1 CTC 1 and Bharati AXA General Insurance Co. Ltd. Rep. by its Manager vs. Aandi and Others, 2018 (2) TN MAC 731 : (2018) 10 SCC 435 in support of his contention. 7. Per contra, Mr. Santharaman appearing on behalf of the respondent would submit that this is a case of violation of policy condition and therefore, the Tribunal has rightly directed to pay and recovered it and that cannot be found fault with by the appellant. He would rely on the following judgments in support of his contention: 1. Branch Manager, Iffco-Tokio General Insurance Company Limited vs. Vijayarani and Others, 2021 SCC Online Mad. 9483 2. Anu Bhanvara vs. Iffco Tokio General Insurance Company Limited and Others, 2019 SCC Online SC 1006 3. Singh Ram vs. Nirmala and Others, (2018) 3 SCC 800 : (2018) SCC (Cri) 270 : (2018) 2 SCC (Civ) 638 : 2018 SCC Online SC 179 4. Shivaraj vs. Rejendra and Another, (2018) 10 SCC 432 : (2019) 1 SCC (Cri) 271 : (2019) 1 SCC (Civ) 24 : 2018 Online SC 1346 5. Manura Khatun and Others vs. Rajesh Kumar Singh and Others, (2017) 4 SCC 796 : (2017) 2 SCC (Cri) 492 : (2017) 2 SCC (Civ) 710 : 2017 SCC Online SC 158 8. Heard the learned counsel and perused the records. 9. The issue involved in the above case is whether the violation is one of the policy conditions or the violation is one of the provisions of the Act. If the violation is one of the policy conditions then the claimant being a third party to the contract of insurance should be compensated by the Insurance Company who shall thereafter recover it from the owner of the vehicle. However if it is a violation of the provisions of the Act then the Insurance Company cannot be made liable to compensate the claimant. 10. However if it is a violation of the provisions of the Act then the Insurance Company cannot be made liable to compensate the claimant. 10. Considering the fact that the injured/deceased in a road accident are third party to the certificate to the insurance policy entered into between the insurance company and the owner of the offending vehicle, the claimants cannot be deprived of compensation. Therefore the Hon’ble Supreme Court in the judgment reported in National Insurance Company vs. Swaran Singh, (2004) 3 SCC 297 has held that under Chapter 9 of the Motor Vehicles Act, all vehicles have to be compulsorily insured. The Hon'ble Bench had ultimately held that where the Tribunal comes to the conclusion that the Insurance Company had proved its defence in accordance with the provisions of Section 149(2) read with Sub-Section 7, the Tribunal shall direct the insurer to pay the award and recover the same from their insured on a certificate which has to be issued by the Tribunal to the collector. However, when it comes to a violation of the provisions of the Act, the insurer cannot be made liable and the insurer can question the very liability to pay the compensation. The Judgments relied on the part of the respondent refers to matters where there is a breach of policy terms where the principal of pay and recovery has been ordered. 11. The Hon’ble Supreme Court in the judgment reported in New Indian Assurance Company Ltd. vs. Asha Rani and Others, 2003 ACJ 1 was considering the issue as to whether the insurer is liable to pay compensation to the dependents of a deceased passenger who has travelling in a goods vehicle which had met with an accident. The defence in the above case by the insurance company was that the insurer will not be made liable to pay compensation since the deceased was travelling in a goods vehicle was upheld by the Hon'ble Supreme Court. 12. A Division Bench of this Court in the case reported in Bharati AXA General Insurance Co. Ltd. vs. Aandi and Others, 2018 (2) TN MAC 731 (DB) was called upon to decide on the correctness of the order passed by the Tribunal granting compensation to the victims of road accident and directing the insurance company to pay and recover the compensation. Ltd. vs. Aandi and Others, 2018 (2) TN MAC 731 (DB) was called upon to decide on the correctness of the order passed by the Tribunal granting compensation to the victims of road accident and directing the insurance company to pay and recover the compensation. The defence of the insurance company was that the insurance company was not required to cover the risk in respect of the person who is travelling in a goods vehicle unless he shows that he is the owner of the goods or he is an authorized representatives. After considering the issue extensively, the Bench had held as follows: “The question regarding the liability of the Insurance Company to pay the compensation in respect of an unauthorized passenger in the Goods Vehicle did arise for consideration. We are therefore of the considered opinion that the Judgment of the Two-Judge Bench in Shivaraj vs. Rejendra and Another referred to supra cannot be taken as a precedent to conclude that the Insurance Company would be liable to pay the Compensation even in respect of an unauthorized Passenger, in a Goods Vehicle, in the light of Categorical pronouncement of Larger Bench of the Hon'ble Supreme Court in New India Assurance Company vs. Asha Rani and Others and National Insurance Co. Ltd. vs. Baljit Kaur and Others, referred to supra. We therefore, conclude that the Tribunal, in the case on hand, was not right in directing the Insurance Company to pay the Compensation and giving it the liberty to recover the same from the Owner.” 13. A Full Bench of this Court reported in Branch Manager, United Indian Insurance Co. Ltd. Brach Office, Dharmapuri Town vs. Nagammal and Others, 2009 (1) CTC 1 was considering the question as to whether an insurer can be directed to pay a compensation to the claimant in a case where the deceased or the injured was travelling as a gratuitous passenger in a goods vehicle and recovered the same thereafter from the owner of the goods vehicle. The Hon’ble Bench after considering the various contentions and decisions had held as follows: “31. (iii) Under Section 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle. 31. (iii) Under Section 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle. 31. (iv) Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of “pay and recover” as statutory recognised in Section 149(4) and Section 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner.” 14. Therefore, in the light of the above pronouncements the Tribunal below was wrong in directing the appellant/insurance company to pay the compensation and recover it from the 1st respondent/owner of the vehicle. Hence the Civil Miscellaneous Appeal is allowed. The 2nd respondent/owner of the vehicle is liable to compensate the 1st respondent herein. No costs. Consequently, the connected Miscellaneous Petition is closed.