( 1 ) THIS appeal and the cross-objections of the claimants involve common question of law and facts, hence both are proposed to be disposed of by a common judgment.

( 2 ) THE appeal has been filed by the Oriental Insurance Company who had insured the vehicle bearing truck No. GTE 8109. It was a goods vehicle insured with the appellant. The respondent No. 1 is the claimant. The vehicle bearing truck No. GTK 3727 is another vehicle which was involved in the incident. It was owned by the respondent No. 3 and was driven by the respondent No. 2. The respondent No. 4 is the insurer of the said vehicle. Respondent No. 5 is the driver of the vehicle GTE 8109 whereas respondent No. 6 was its cleaner and respondent No. 7 was its owner.

( 3 ) IT is not necessary for us to deal in detail the factual aspect of the case because the appeal of the appellant is based on limited point namely that the appellant is not liable under the terms of the insurance policy, under the terms of the motor permit issued by the Transport Authority and also in view of the Apex Courts verdict in. ,

( 4 ) WE have heard Shri S. D. Patel, learned Counsel for respondent No. 1, Shri P. V. Nanavati, learned Counsel for respondent No. 4, Shri K. C. Shah, learned Counsel representing Shri M. C. Shah, learned Counsel for respondent Nos. 5 to 7 and Shri R. H. Mehta, learned Counsel for the appellant.

( 5 ) SHRI Mehta has drawn our attention to the findings of the Tribunal on page 26, paragraph 28 and has assailed these findings on the ground that the vehicle insured with the appellant was goods vehicle, hence within the ambit of the insurance policy as well as the motor permit, no liability can be fastened upon the appellant for payment of compensation. He also urged that in any case, the verdict of the Apex Court in the case of Smt. Mallawwa (supra) would be enough to exonerate the appellant Co. from any liability to pay compensation.

( 6 ) THE finding of the Tribunal has been that the driver of truck No. GTK 3727 is responsible to the extent of 75 percent and the driver of the truck no. GTE 8109 is responsible to the extent of 25 percent. So far as the apportionment of the liability for the negligence is concerned, it has not been challenged by the learned Counsel for the appellant. His only contention has been that in. spite of this assessment, there is no liability of the appellant to pay any compensation and the compensation so assessed can be recovered from the other opposite parties who have been held responsible to this extent,

( 7 ) WE have gone through paragraph 28 of the award of the Tribunal. The Tribunal was of the view that the contention of opponent No. 7 was not acceptable. The said contention was that since the applicant was passenger for hire or reward and the truck in question was a goods vehicle, in view of the policy and permit brought on record, there can be no liability of the Oriental insurance Company to pay any compensation. Further contention was that there was breach of the terms and conditions of insurance policy and permit. The insurance policy was filed as Exh. 127 and the permit was filed as Exh. 98. This contention was negatived by the Tribunal on the ground that there is overwhelming evidence on record that the applicant has hired the truck for carriage of one bag of tuver pulse and he was travelling with it as owner of the said goods. The Tribunal admitted that this fact was not alleged in the claim petition but from the evidence of the driver of the truck GTE 8109 and its cleaner, the Tribunal clearly came to the conclusion that the applicant was travelling in the truck with goods and the truck was hired for carriage of the goods. Needless to say, that the said fact was not pleaded in the claim petition. The Tribunal, therefore, could not have permitted any evidence on the point in evidence at belated stage on a fact which is not pleaded in the claim petition and such evidence could not have been accepted by the Trib