( 1 ) UNITED India General Insurance Company original oppo- nent no. 2 of Motor Accident Claims Petition No. 152 of 1979 has pre- ferred this appeal against the judgment and award rendered by the Motor Accident Claims Tribunal no. 1 at Surat no 23-11-1979.

( 2 ) THE petition was filed by the widow of deceased-Jerambhai Dahya- bhai Parmar and the children of the deceased. The undisputed facts were that deceased-Jerambhai was travelling in a Tempo bearing registration no. G. T. T. 4075 on the date of the incident. i. e. on 8-6-1978. In the tempo milk cans were carried. The milk-cans were carried on behalf of Jawahar Dudh Utpadak Sahakari Mandli Ltd. to Kunverda Village. The milk cans were required to be delivered to Pal Dairy at Surat. Jerambhai was sitting in the rear portion of the vehicle. The accident occurred at Kim four roads on National Highway road at about 7-30 A. M. Deceased Jeram fell down from the vehicle and ultimately he expired. The tempo in question belonged to one Daulatsinh Chandrasinh who was joined as opponent no. 1 and who is now respondent no. 8. Respondents nos. I to 7 the widow and the children of the deceased claimed a sum of Rs. 1 9 999

( 3 ) THE claim petition was resisted by the appellant and ultimately a total sum of Rs 40 560 was awarded and it was ordered that that amount was to be recovered with 6% running interest and proportionate costs from the appellant and respondent no. 8 who were opponents nos. 1 and 2.

( 4 ) OPPONENT no. 1 did not prefer any appeal. Opponent no. 2 the Insurance Company only had filed this appeal. Under the circumst- stance the question as to whether the driver of the tempo was rash and/ or negligent is not required to be considered and no arguments on that question were advanced. The only question which was argued at great length was in regard to the liability of the Insurance Company. It may be stated here that if the Insurance Company is held liable it is not required to be decided as to whether the amount of compensation which was awarded was proper or not. that question not being open to the Insurance Company no arguments were advanced on that aspect of the matter.

( 5 ) THE claimants have also not preferred Cross-objections or any appeal against the award with a contention that the amount awarded is less. Under the circumstances we are only required to decide as to whe- ther the Insurance Company is liable to idemnify opponent no. 2 in regard to the award which is passed.

( 6 ) BEFORE we go to the legal arguments advanced by the learned advocate Shri M. I. Patel we may state that the Insurance Company had filed written statement at Exh. 14 and the following contention was taken :"moreover as stated above the deceased was illegally sitting in the open luggage van at his own risk and as a gratuitous passenger". It was further stated that the Insurance Company had covered the risk of the driver and cleaner only and the Insurance Company had not covered and risk for any other passenger and therefore the Insurance Company was not liable to indemnify opponent no. 1 as per the insurance policy terms.

( 7 ) NOW so far as the evidence is concerned the widow of the deceased gave her evidence at Exh. 28. She stated that her husband was collecting milk from various centres of the surrounding villages and thereafter was giving the same to Pal Dairy at Surat. According to her the deceased was doing that work every day and there were two trips of the van par day. She also stated that the deceased was personally asse- ssing the fat of the milk. One mistake in regard to the evidence had crept is and that mistake is that she stated that her husband was per- sonally driving the said tempo. That is not so stated in the petition and it is nobodys case that the deceased was personally driving the tempo. The case of the insurance company also is that the deceased was only travelling in the tempo. In cross-examination the widow of the deceased stated that there was a milk soci