JUDGMENT :

H.K. Rathod, J.

Heard learned advocate Mr. SB Parikh for learned advocate Mr. RH Mehta on behalf of appellant - New India Assurance Co. Ltd., learned advocate Mr. MTM Hakim with learned advocate Mr. Mohsin Hakim appearing for respondent nos. 1 to 6 and learned advocate Mr. H.J. Trivedi appearing for respondent nos. 7 and 8.

2. The appellant insurance company has challenged award passed by Motor Accident Claims Tribunal, Vadodara in MACP No. 790/87. The said claim petition was filed by claimants u/s 110(A) of M.V. Act.

3. Learned advocate Mr. Parikh raised contention before this Court that claims Tribunal ought not to have entertained present claim petition in view of facts that Claims Tribunal has jurisdiction only to try accident which occurred as result of or out of use of motor vehicles, while present mishap has occurred due to breaking of boom of crane, which incident could under no circumstances be construed as user of motor vehicle as such.

4. Learned advocate Mr. Parikh has also raised further contention that claims Tribunal ought not to have passed any award against present appellant in view of facts that policy issued to opponent no. 2 indemnify said insured only with respect to liability, which may be caused due to use of motor vehicle as such and present mishap has occurred not due to any use of motor vehicle but due to breaking of boom of crane which can not consider to be an accident within preview of contract of indemnity.

5. He also raised contention that claims tribunal ought to have held that risk of accident by user of crane was not required to be covered by Motor accident policy and was not in fact covered by policy, Exh. 22. Therefore, claims Tribunal ought not to have passed any award against present appellant insurance company.

6. He submitted that issue no. 2 decided by Claims Tribunal while committing gross error and present accident was not vehicular accident, covered under insurance policy as per section 95 of Motor Vehicle Act. The claims Tribunal has committed gross error in relying upon reported decision in case of New India Assurance Co Ltd v. Gordhanbhai Ambalal Barot and Ors reported in 1986 (1) G.L.R. 700, where facts are different, therefore, that decision is not applicable. Similarly, claims Tribunal has committed gross error in relying upon decision in case of Padmanbhan Nair v. Narayanikutty and another reported in 1988 ACJ 58, where facts are altogether different.

7. He raised contention that accident is not occurred by use of motor vehicle. Therefore, claims Tribunal has no jurisdiction to decide claim petition filed by claimants.

8. He referred evidence of driver, para 4 and according to him, accident occurred because of negligence of deceased, but not due to negligence of crane driver. He relied upon decisions reported in case of Shivaji Dayanu Patil and another v. Vatschala Uttam More reported in 1991 ACJ 777, in case of Gujarat Road Transport Corporation v. Union of India reported in 1987 ACJ 734, in case of Union of India v. Sushila Devi reported in 1990 ACJ 1 Full Bench decision of Allahabad High Court and in case of Rajpal Singh v. Union of India reported in 1986 ACJ 344, Full Bench decision of P & H High Court & in case of Union of India v. United India Insurance Co. Ltd reported in 1998 ACJ 342 Full Bench decision of New Delhi, which have been considered by this Court.

9. He submitted that if for taxation purpose, crane is considered to be 'motor vehicle', which is having altogether different meaning. According to him, driver has not driven truck but only crane was operated by driver, for which, crane can not consider to be 'motor vehicle' and there was no negligence of driver of crane as per his evidence in para 4. Therefore, he submitted that claims Tribunal has committed gross error in deciding claim petition and awarding compensation with a direction to appellant for payment of compensation with interest to indemnify respondent no. 2.

10. These are submissions made by learned