1. The appellant has challenged judgment and award passed by MACT, (Auxi.), Panchmahals at Godhra in MACP No.1883 of 2000 Exh.34 decided on 30th June, 2009. The Claims Tribunal has awarded Rs.4,15,000/- with 8% interest in favour of respondents-claimants.

2. Learned advocate Mr.K.K.Nair appearing on behalf of appellant-insurance company raised number of contentions before this Court challenging award in question. He submitted that deceased was travelling on roof of tempo when admittedly vehicle is goods vehicle. The FIR filed by cleaner of tempo not asked deceased to sit on roof of tempo, deliberately deceased was travelling on roof of tempo.

2.1 Learned advocate Mr.K.K.Nair has relied upon decision of Apex Court in case of National Insurance Co. Ltd. Vs. Cholleti Bharatamma and others reported in 2007(12) Scale 560. He submitted that owner of goods means only the person who travels in the cabin of the vehicle. Therefore he submitted that admittedly deceased was travelling on roof of tempo, therefore, insurance company is not liable to pay compensation. He also emphasise that it was case of a contributory negligence of deceased for travelling on roof of tempo without asked by cleaner or driver of tempo. He relied upon decision of Division Bench of Karnataka High Court in the case of Smt.Mayamma Vs. Siddaiah and others reported in 2003(2) Transport and Accident Cases 410 (Kant.). Relying upon this decision, he submitted that, if deceased was travelling on roof of bus in breach of law then it amounts to some part of contributory negligence of deceased. He also submitted that deceased was died when tempo was moving but that fact was nobody is aware about the death of deceased. He relied upon FIR filed by Sikander Abbasbhai Belim, cleaner of tempo. While relying upon this FIR, he submitted that, it was not asked by cleaner or driver to decease to travel on roof of tempo. No such facts have been narrated by cleaner in FIR dated 24th June, 2000. He submitted that the decision which have been relied upon by claimant is of a Single Judge judgment against which decision of Division Bench of Karnataka High Court must have to be relied by this Court. He also submitted that owner of vehicle insured has committed breach of condition of insurance policy using the tempo being a goods vehicle for hiring passengers which contributed the death of deceased, therefore insurance company is not liable to pay any compensation. He also submitted that, in spite of having sufficient space available to sit inside the tempo, deceased was voluntarily seated on roof of tempo that considered to be a case of clear negligence of deceased who can avoid such accident and therefore that there is sole negligence on the part of deceased or alternatively he suggested 50% negligence. Exh.26 FIR and Exh.27 panchnama also placed on record by learned advocate Mr.Nair. Except that no other submission is made by learned advocate Mr.Nair before this Court challenging award in question.

3. I have considered the submissions made by learned advocate Mr.K.K.Nair and I have also perused award passed by Claims Tribunal, Godhra.

4. The brief facts of present appeal are as under:

4.1 That on dated 24th June, 2000, deceased had gone to Kothamba to purchase wheat grass from the market. After purchasing the same, deceased had hired a Tempo No.GJ-17-X-5021 to transport the wheat grass and he was also travelling in the said tempo along with his goods. The driver and cleaner of the said vehicle had asked deceased to put his goods on roof of the vehicle and had also asked him to sit near his goods to look after the same. The said vehicle was driven by opponent No.1 in very rash and negligent manner with excessive speed. When the said vehicle had reached to village at the place of occurrence, one branch of Mahuda tree was looming low on the road. Due to careless driving and high speed, opponent No.1 had not noticed the branch of Mahuda tree and deceased was hit by this branch of