The main legal point established in the judgment is that the insurance company is not liable to pay compensation for unauthorized passengers traveling in goods vehicles, as per the provisions of the Motor Vehicles Act, 1988 and the terms of the insurance policy.

R.P. Dholaria, J.

1. This appeal is preferred by the appellant-Oriental Insurance Co. Ltd. against the judgment and award dated 11/11/2009 passed by the Motor Accident Claims Tribunal (Auxiliary), Anand in Motor Accident Claim Petition No. 281 of 2006 (Old Motor Accident Claim Petition No. 360 of 2005).

2. Heard Mr. Anal Shah, learned advocate for the appellant. Though served, respondents chose to remain absent.

3. Brief facts of the case are that on 08/09/2005, at about 6:45 p.m., when son of respondent No. 1/1 and 1/2-original applicants went to Mahisagar river for submerging the idol of Lord Ganapati by travelling in tri-wheeler Tempo No. GJ-7-Z-5506 and when they were coming back, the driver of the said Tempo i.e. respondent No. 2-original opponent No. 1 drove his Tempo in a rash and negligent manner and thereby the Tempo turned turtle on the road and as a result of which Ganeshbhai came under the said Tempo and he died. The criminal complaint was also lodged before Chhani Police Station at Vadodara city. At the time of accident, deceased Ganeshbhai was 19 years old and was hale and hearty. Ganeshbhai was doing masonry work and other miscellaneous labour work and used to earn Rs. 2,100/- per month. Because of his sudden demise, both the original applicants have suffered permanent loss of future income as well as loss of love and affection of the deceased. As the accident took place due to gross negligence on part of driver of offending vehicle, original applicants have claimed compensation of Rs. 2,73,300/- under Section 163 of the Motor Vehicles Act, 1988 ('the Act' for short) from the opponents jointly. The learned Tribunal has vide impugned judgment and award, awarded compensation of Rs. 2,47,400/- against which the appellant-Insurance Company has preferred present appeal.

4. Mr. Anal Shah, learned advocate for the appellant -Insurance Company, has, inter alia, contended that the judgment and award dated 11/11/2009 passed by the learned Tribunal, holding the appellant/insurance company along with other respondents liable to compensate is contrary to the provisions of the Act. It is further contended that the learned Tribunal has failed to consider that Ganeshbhai was travelling upon Tempo bearing registration No. GJ-7-Z-5506 as a passenger upon the goods vehicle which is not permissible as per the provisions of the Act as well as terms and conditions of the policy and therefore, no liability can be fasten upon the appellant-insurance company. Further it is contended that learned Tribunal has failed to consider that the appellant-insurance company is at liberty to take all contentions as provided under Section 149 (2) of the Act and the Tribunal is obliged to consider the same and record the finding thereon which is not done by the learned Tribunal and the decision rendered by the learned Tribunal suffers from vice of non consideration of the contentions raised before the Tribunal. Ultimately it is prayed that the appellant-insurance company be exonerated from any liability for payment of compensation as such.

5. Having perused the impugned judgment and award and record and proceedings of the case, it is noticed that indisputably deceased Ganeshbhai was traveling upon the tri-wheeler wheel vehicle being Tempo bearing registration No. GJ-7-Z-5506 which is an auto rickshaw pick up van which has been registered as pick up van as per the detail description given in the RC book produced before the learned Tribunal. The RC book as well as particulars mentioned in the policy clearly discloses that seating capacity is of one person only of the vehicle in question. Indisputably, the heirs and legal representatives of the deceased have preferred the aforesaid claim petition under Section 163(A) of the Act seeking compensation and they have pleaded that the deceased along with others i.e. about fifteen persons were travelling upon the aforesaid pick up van for submerging the idol of Ganeshji in Mahisagar river. It is also reve