1. This appeal is directed by Original Respondent No. 1 Insurance Company of offending Truck No. MTO-6457, against the judgment and award passed by the Motor Accident Claims Tribunal, Aurangabad in MACP No. 379 of 2005, awarding compensation of Rs. 3,09,000/- with interest there on at the rate of 9% per annum from the date of filing of petition till its realization. Respondent Nos. 1 and 2 are the Original Claimants. Respondent No. 3 is the owner of offending truck and the Respondent No. 4 is the driver.

2. Facts in nut shell are that on 9.4.2005 deceased Ankush Shinde was travelling by the offending truck as loading un-loading labour and care taker of the goods of the 'Folk Party' by Auangabad to Ahmednagar road. Due to rash and negligent driving by the driver of the truck, it left the road and turned turtle, resulting into the death of the deceased.

3. Learned counsel for appellant submits that deceased was not employee of insured (owner of the truck) and therefore, policy of the offending truck, does not cover liability of the death of the deceased. He has drawn my attention to “Sanjeev Kumar Samrat vs National Insurance Company Limited and Others,” [(2014) 14 Supreme Court Cases 243], wherein the Apex Court held that,

“Insurance Company is not under statutory obligation to cover all kinds of employees of the insured, but only the employees employed or engaged by employer as per the policy, some one who travels not being an authorized agent in the place of owner of goods and claims to be an employee of owner of goods, cannot be covered by statutory policy. Therefore, the insurer would not be liable to indemnify the insured owner of the vehicle for the death of employees of the hirer.”

4. He submits that no documentary evidence is placed by the claimants to prove that the deceased was travelling by the offending truck as care taker of the goods of owner. His next submission is that the copy of FIR which is made part of the claim petition, indicates that on the date of accident, the deceased was travelling by the truck along with other artists and labourers. The deceased was not sitting in the cabin of the truck but he was in the rear portion of the truck, along with other artists. He submits that deceased being ordinary labour-cum-occasional artist, cannot be a care taker of the articles of the 'Folk Party'.

5. Learned counsel for respondent Nos. 1 & 2/claimants submits that in the written statement of Insurance Company, no specific defence is taken regarding the breach of condition of policy. His next submission is that in the cross-examination of claimant Mandubai Shinde (PW-1) it is not disputed by the learned counsel for the Insurance Company that the deceased was travelling by the truck as care taker of the goods of the 'Folk Party', as well as loading unloading labour of the 'Folk Party'. He submits that even in the written statement, the insurance company has not specifically denied the claim of the claimants that deceased was travelling as loading unloading labour of 'Folk Party' and he was also a care taker of the goods of the 'Folk Party'.

6. Next submission of learned counsel for respondent nos. 1 and 2 is that even compensation awarded by the Tribunal is inadequate and even under the conventional heads improper compensation is awarded by the Tribunal. He prays for enhancement of the compensation as “just and fair compensation”. He placed reliance on “Iffco Tokio General Insurance Company Limited Vs Sudamati w/o Kishanrao Kale and Anr.” [First Appeal No. 1388 of 2016] decided on 10th January, 2018, wherein this Court has taken view that

“when deceased was travelling by offending Goods Vehicle as Care Taker of musical instrument of Band Party, risk of deceased in the event of his death is covered by the policy of the insurance under Section 147 of the Motor Vehicles Act, 1988”.

7. After going through the poli