1. Heard learned Advocate Mr. KK Nair for appellant insurance company.

2. By way of this appeal, appellant Insurance Co. has challenged award made by MACT Rajkot in Claim Petition 854/97 dated 8th August, 2008 wherein claims tribunal has awarded Rs. 3,15,200.00 in favour of claimants with interest thereon at the rate of 9 per cent with a direction to recover same from opponents no.1 to 5 jointly and/or severally.

3. Learned Advocate Mr. Nair for appellant has raised contention that the claims tribunal has committed an error in not appreciating that only Rs.15.00 were paid as premium by owner in respect of paid driver and therefore, risk of person driving the vehicle is not covered by insurance policy issued by insurance company. He also raised contention that as per the terms and conditions of policy, risk of deceased driver was not covered. He relied on the provisions of section 147(5) of MV Act. Therefore, sec. 147(5) of MV Act is reproduced as under:

S.147(5): Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.

4. Learned Advocate Mr. Nair also submitted that the claims tribunal has misinterpreted and misunderstood policy of insurance and, therefore, impugned award is required to be interfered with by this court. He also submitted that 50 per cent negligence is decided against the driver of jeep No.1431 and, therefore, he was also negligent in accident and for that also, claimants are not entitled to any compensation from appellant. He also submitted that in respect of damage caused to vehicle No. 1431, 50 per cent has been deducted from compensation awarded by claims tribunal. He submitted that claim petition no. 1227 of 1997 was filed by owner in which amount of Rs.50,000.00 was awarded and then Rs.25000.00 were deducted being 50 per cent negligence on the part of driver of jeep no. 1431. He relied upon decision of apex court in case of New India Assurance Co. Ltd. versus Meera Bai and others, 2007 ACJ 821 and submitted that in that case, considering insurance schedule, it was held by apex court that the schedule covers 'paid driver and/or conductor' and, therefore, obviously, the owner who is himself driving the vehicle is not covered under the policy. He submitted that in the said decision, earlier decision of apex court in case of Dhanraj v. New India Assurance Co. Ltd., reported in 2005 ACJ 1 (SC) has considered.

5. Learned Advocate Mr.KK Nair for appellant also placed reliance upon the decision of apex court in case of Ramshray Sigh versus New India Assurance Co. Ltd. (2003) 10 SCC 664 and submitted that the apex court has considered third party risk, expression any person and any passenger in sub clauses (i) and (ii) of s. 147 (1)(b) and it was held that it covers only a driver, a conductor or examiner of tickers and no other employees such as cleaner (khalasi) are covered. He also submitted that in the said decision, it has also been held that comprehensive insurance policy covers the loss sustained by the insured upto the insured amount irrespective of the actual loss suffered.

6. Learned Advocate Mr. KK Nair for appellant also relied upon the decision of apex court in case of Jameskutty Jacob versus United India Insurance Co. Ltd. and others, (2003)7 SCC 131 and submitted that in the said decision, liability of the insurance company in respect of Act-only policy was considered by apex court and no documents produced to show that the vehicle insured was a taxi and not a private vehicle and it was held that the case is covered under S. 95(2) (c) and not under S. 95(2)(b)(i) and the liability of the Insurance Co. is the liability incurred even though it is an act-only policy. After citing said decision, he submitted that