JUDGMENT :

H.K. RATHOD, J.

1. Heard learned Advocate Mr. A.V. Prajapati for appellants and learned advocate Mr. Thakkar for respondent Nos. 3 Insurance Company.

2. By filing this appeal, appellants claimants have challenged award made by Claims Tribunal at Patan in claim petition No. 3707 of 2002 vide Ext. 52 decided on 28th November, 2006 wherein Claims Tribunal has exonerated Insurance Company as risk of any passenger or any employee is not covered in policy Ext. 32, therefore, Insurance Company is not held liable by Claims Tribunal. This decision of Claims Tribunal is under challenge in this appeal by appellants.

3. Learned Advocate Mr. Prajapati for appellants submitted that deceased was employee of owner or contractor and, therefore, deceased ought to have been considered third party and risk of third party is covered under policy even though Claims Tribunal has committed gross error in exonerating Insurance Company. He submits that it was proved by claimants before Claims Tribunal that deceased was employee of contractor.

4. Learned Advocate Mr. Thakkar for respondent Nos. 3 Insurance. Company submitted that Ext. 32 being an Act Policy, no additional premium was paid by owner insured covering risk of any passenger or any employee and employee cannot be considered as third party and, therefore, risk of employee is not covered in policy Ext. 32 and this aspect has been rightly appreciated by Claims Tribunal and Claims Tribunal has rightly exonerated Insurance Company. For that, according to him, no error is committed by Claims Tribunal which would require interference of this Court.

5. I have considered submissions made by both learned advocates. I have also perused impugned award made by Claims Tribunal. On 30th October, 1999, deceased Vastuji Kadvaji Thakor was going in Tactor No. GJ.2.L.2147. When said tractor reached near Saraswati Bridge, driver of said tractor drove said tractor in a rash and negligent manner with an excessive speed and as a result of that, tractor turned turtle and deceased Vastuji was crushed under said tractor and caused impugned accident. That in said accident, Vastuji Kadvaji succumbed to injuries. Based upon said facts, aforesaid claim petition was filed by claimants claiming compensation of Rs. 5,00,000/- against respondents. It was their case that deceased was 35 years old and was hale and hearty and was earning Rs. 2000/- by doing labour work and used to maintain whole family.

6. Before Claims Tribunal, reply was filed vide Ext. 26 on behalf of opponents Nos. 1 and 2 denying averments made by claimants in their claim petition. Reply was also filed by Insurance Company at Ext. 30 denying averments made in claim petition. Vide Ext. 13, issues have been framed and thereafter, Claims Tribunal has examined question of negligence in affirmative holding gross negligence on part of opponent Nos. 1 and, therefore, owner of vehicle as well as driver and contractor are liable for said accident.

7. Before Claims Tribunal, for proving claim, one of the claimants namely Taraben was examined at Ext. 33 and it was deposed by her that her husband had gone as labourer of opponent Nos. 2 in vehicle i.e. Tractor involved in accident. Her husband was engaged by owner opponent Nos. 2 as his employee and in capacity of employee, deceased was moving in tractor and when tractor turned turtle, he was crushed and died at the spot. Driver of tractor opponent Nos. 1 Domalji Movtaji Thakor was examined at Ext. 45 and one witness Bhupatji was examined at Ext. 42. There is no dispute between parties as regards facts recorded. Question is, whether Insurance Company is liable or not for payment of compensation. That aspect has been examined by Claims Tribunal in para 11 of award as under :

Learned Advocate Mr. L.S. Rajput appeared for the claimants have vehemently argued before this Court that this deceased Vastuji was a third party and in view of provision of Section 147(1)(b) Proviso (I) of Motor Vehicle Act and deceased Vastuji be