JUDGMENT :

1. This appeal, under Section 173 of the Motor Vehicles Act, 1988 (‘the Act’ for short), is filed by the Insurance-Company as appellant, challenging the judgment and award dated 08.03.2007, of the Motor Accident Claims Tribunal (Auxi.) Fast Track Court No.11, Kheda at Nadiad in the Motor Accident Claims Petition No.349 of 1996, wherein the Tribunal awarded total compensation of Rs.1,62,500/- with interest at the rate of 9% per annum from the date of filing of Claim Petition till realisation with proportionate costs. The Tribunal further in the judgment and award dated 08.03.2007, directed the Insurance Company to first pay the amount of compensation and then permitted to recover from the owner of the vehicle involved.

2. In this appeal, appellant is the Insurance Company with whom the vehicle in question was insured at the relevant time. Respondent Nos.1, 2 and 3 are the original-claimants and respondent 4 is a driver-cum-owner of vehicle No.GJ-7X-2432.

3. The facts emerging from the record of this appeal are as under :

On 18.02.1996, Natubhai Punjabhai (hereinafter referred to as ‘deceased’) was travelling in Chhakdo Rickshaw No. GJ-7X-2432, at that time, the vehicle (Chhakdo Rickshaw) turned turtle and Natubhai sustained grievous injury and succumbed to the same. For the said accident, original claimants filed claim petition under Section 166 of the Act, seeking compensation of Rs. 2,50,000/-. It was case of the original-claimants that the accident occurred when the deceased was travelling in a Chhakdo Rickshaw carrying goods. The accident occasioned on account of rash and negligent driving of driver of Chhakdo Rickshaw. As deceased was earning Rs.1500/- per month by doing labour work, claimants were entitled for the compensation as claimed.

Upon claim petition being filed, notices were issued. Before the Tribunal though served, opponent No.3 (owner/driver of the Chhakdo Rickshaw No. GJ-7X-2432), chose not to appear. The Insurance Company appeared and filed its written statement below Exh.32. It was case of the Insurance Company before the Tribunal that deceased Natubhai Punjabhai was travelling as gratuitous passenger and as he was travelling as a gratuitous passenger, Insurance Company is not liable for the payment of compensation as claimed. It was further case of the Insurance Company before the tribunal that assuming without admitting that even if the passenger was travelling with the goods in ‘chakdo rickshow’; extra premium was not paid by the owner of the vehicle and therefore also, Insurance Company is not liable for the payment of compensation.

4. The Tribunal after hearing the parties and upon appreciation of the evidence on record, decided the issues as under: -

(i) In relation to negligence, the Tribunal held driver of Chhakdo Rickshaw as sole negligent for occurrence of the accident.

(ii) In relation to compensation, the Tribunal, awarded total compensation of Rs.1,62,500/- with 9% per cent interest per annum from the date of filing of claim petition till realisation with proportionate cost.

(iii) In relation to liability, the Tribunal held that the deceased was travelling in a ‘Chakdo Rickshaw’ as a gratuitous passenger. It was also held that no extra premium was paid to the Insurance Company for passenger travelling with the goods. The Tribunal however, directed the Insurance Company to pay the compensation and then permitted to recover from the owner of the vehicle.

5. Aggrieved by the liability fastened on the Insurance Company and consequently the compensation awarded, present appeal is filed by the Insurance Company under Section 173 of the Act.

6. Heard learned advocate Mr. Bhavin Thaker for learned advocate Mr. M.J. Shelat for the appellant – Insurance Company. Though served, none appeared for original claimants as well as owner of the vehicle. It is pertinent to note that before the Tribunal also none appeared on behalf of the owner of the vehicle. The Co-ordinate Bench of this Court, vide orde