1. Heard learned advocate Mr.Vibhuti Nanavati for appellant Insurance Co.

2. In this appeal, appellant - Insurance Co. has challenged award passed by MAC Tribunal, Banaskantha at Palanpur in MACP No.39 of 2007 dated 7.10.2008 whereby claims Tribunal has awarded Rs.1,74,500/- being a compensation to legal heirs and representative of deceased with 9% interest.

3. Learned advocate Mr.Nanavati submitted before this Court that a specific contention was raised in Para.13 by advocate of Insurance Co., Mr.Soni, after producing insurance policy before claims Tribunal in respect to Jeep No.GJ-8-A-8050 where insurance policy was act policy. Therefore, occupant being a deceased travelling in jeep, who died, therefore, claimants are not entitled any amount of compensation because there was no additional premium paid by owner of vehicle. Relying upon decision of Apex Court in case of Tilak Singh v. United India Insurance Co. ltd. reported in 2006 ACJ 1441, he submitted that pillion rider is not covered when act policy issued by Insurance Co., therefore, Insurance Co. has committed gross error in deciding matter and ignoring Apex Court's judgment and awarded compensation in favour of claimant. Except that, he has not made any other submissions before this Court.

4. I have considered contentions raised by learned advocate Mr.Nanavati and also perused award in question. The claims Tribunal has considered decision of this Court in case of National Insurance Co. Ltd. v. Ruksanaben reported in 2007 (1) GLH 171 where following observations are made, which are quoted as under :

As regards the second contention, we find that decision in Tilak Singh's case 2006 (4) SCC 404 was rendered in an application under section 166 of the Act. In that case, the accident took place on 31.10.1989. The decision of Apex Court was not rendered in an application under Section 163A of the Act introduced in the year 1994.

The non obstante clause with which clause 163A(1) begins makes it clear that the liability of the insurance company to satisfy the award is not dependent upon any other provisions of the Act and, therefore, the question whether the passenger in the motor cycle was a gratuitous passenger or whether he can be said to be third party or not would not be relevant. The contention, therefore, must be rejected.

5. Learned advocate Mr.Nanavati is not agreed with this reasoning given by this Court relying upon decision of Apex Court in case of National Insurance Co. Ltd. v. Swarna Singh reported in AIR 2004 SC 1531. Relying upon Para.105 of aforesaid decision, he submitted that Insurance Co. is entitled to raise a defence in a claim petition filed under Section 163A or 166 of MV Act inter alia in terms of Section 149(2)(a)(ii) of said Act. I have considered this submission made by learned advocate Mr.Nanavati. The claim petition was filed by claimant under Section 163A of MV Act. Therefore, claimant shall not have to plead negligence or establish wrongful act of owner of the vehicle. Accordingly, claims Tribunal has considered that deceased who died was travelling being an occupant in jeep where act policy was issued in favour of owner in respect to Jeep No.GJ-8-A-8050. The accident occurred on 8.5.2006 when jeep was going from Tharad to Sanchor on highway road near Diamond Petrol Pump as well as in jurisdiction of Tharad police station about 16.30 hrs. one opposite vehicle bearing Jeep No. GJ-8-V-1945 coming from opposite side, dashed with jeep No.GJ-8-A-8050 and due to this vehicular accident, one Suviben had expired, who was travelling as an occupants in Jeep No.GJ-8-A-8050. On that basis, claim petition was filed claiming Rs.4,66,500/- by claimant. A reply was filed by appellant Insurance Co. at Exh.26. The advocate of Insurance Co. made submission before claims Tribunal that in absence of cogent evidence in respect to income of deceased, notional income is to be considered by claims Tribunal and on that basis, compensation is to be awarded by