(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

These two appeals under Section 173 of the Motor Vehicles Act, 1988 are at the instance of the Insurance Company and are directed against the selfsame award dated 13th September, 2004, passed by the Motor Accident Claims Tribunal (Auxiliary), Surendranagar, in MACP No. 404 of 1994, by awarding a sum of Rs. 8,92,440/-with interest at the rate of 9% per annum from the date of filing of the application till realization with costs holding the opponents jointly and severally liable to pay the amount, whereas in MACP No. 405 of 1994, the Tribunal awarded a sum of Rs. 9,32,000/-with interest at the rate of 9% per annum from the date of filing of the application till realization with costs holding the opponents jointly and severally liable to pay the amount. Being dissatisfied, the Insurance Company has come up with the present appeals.

Although the claim petitions were allowed in part, the claimants have not filed either any appeal against the award or cross objections in these appeals.

2. It appears from the materials on record that there was an accident on 26th December, 1993 at about 3.15 in the early morning at a place called Dedadara Patiya, situated in the Taluka of Wadhwan when the jeep in which the claimants and the deceased were travelling, dashed into a tree. As a result of such accident, out of the persons who were travelling in the jeep, three persons died on the spot, namely (1) Mukeshbhai Delichandbhai, (2) Bhadreshkumar Jaisukhlal Doshi and (3) the driver of the vehicle named Dilavar. The claimants of the Claim Petition No. 404 of 1994 are the legal heirs of the deceased Mukeshbhai Delichandbhai, whereas the claimants of Claim Petition No. 405 of 1994 are the legal heirs of the deceased Bhadreshkumar Jaysukhlal Doshi.

3. In both the Claim Petitions, the registered owner of the offending vehicle was made opponent No.1 and the Insurance Company as opponent No.2. The Insurance Company filed its written statement Exh.10 in both the claim petitions and the owner of the vehicle in question also filed his written statement vide Exh.15 in both the Claim Petitions, thereby denying the material allegations made in the Claim Petitions and one of the main defences taken by the Insurance Company was that according to the terms of the policy, the use of the offending vehicle should be only for social, domestic and pleasure purposes and for the insured's own business, and not for hire or reward.

4. In Claim Petition No. 404 of 1994, the wife of the deceased, namely, Prafulaben, led the oral evidence vide Exh.31, whereas in Claim Petition No. 405/94, the father of the deceased, namely Jaisukhlal Maganlal entered the witness box and led the oral evidence vide Exh.39. Both these witnesses were cross-examined by the Insurance Company, whereas there was no cross-examination at the end of the registered owner of the offending vehicle and at the same time, the registered owner himself did not lead any oral evidence.

5. It appears from the materials on record that one Sudhirbhai Vinaychandra Shah, one of the occupants of the jeep which met with the accident and brother-in-law of the deceased Bhadreshbhai lodged a First Information Report about the accident at Wadhwan Police Station on the same day i.e. on 26th December, 1993 at 11.35 hours in the morning. According to the contents of the FIR Exh.32, the first informant Sudhirbhai resided with his family at Mumbai and were desirous of visiting places like Sankheshwar etc. Accordingly, the first informant had informed his brother-in-law, i.e the deceased Bhadreshbhai to make necessary arrangements for the visit to Sankheshwar as and when the first informant and his family came to village Talaja. According to the first informant, his brother-in-law Bhadreshbhai arranged for a Commando Jeep by taking it on hire. At around 9' O Clock in the night, the first informant and the others including the deceased persons left Talaja and while on their