JUDGMENT :

1. This first appeal has been filed by the appellant-original opponent No.2 – Insurance Company against the respondent Nos. 1-5 original claimants and the respondent no. 6- original opponent No. 1, under Section 173 of the Motor Vehicles Act, (‘The Act’, for short) against the judgment and award passed by learned M.A.C.Tribunal (Aux.), Presiding Officer, 3rd Fast Track Court, Panchmahals at Godhara in Motor Accident Claim Petition No. 197 of 1999 on 31.01.2007. The parties are hereinafter referred to as the claimants and the opponents as they stood in the original petition for the sake of convenience, clarity and brevity.

2. The brief facts that emerge from the record of the case are as under:-

2.1 That on 11/01/1999 at about 08.30 am, Vikramsinh Jitsinh Jadav was going on Tractor No. GTM-7864 and Trolly No. GTG-7859 to the Petrol Pump to bring fuel and when they reached near Meshry river bridge, Satpur in Godhara Town, the Tractor driver was driving the tractor in a rash and negligent manner and lost control over the Tractor and the Tractor turned turtle in a ditch. The complaint was lodged with Godhara Town Police Station vide I-C.R.No.19/1999. The claimants, who are the widow and children of deceased Vikramsinh Jitsinh Jadav have filed the claim petition mainly stating that the deceased was 28 years of age the the time of accident and was earning Rs.2,800/- from doing agriculture work as well as from the service. The claimants have lost their sole earning member. That the deceased had no vices and suffered pain and agony after the accident till he succumbed to the injuries and the widow and the children have lost the love and affection of the deceased and hence have claimed an amount of Rs.6,00,000/- under all available heads from all opponents jointly and severally with interest at the rate of 21% from the date of accident till realization.

2.2 The notices were duly served to the opponents but the opponent No. 1, who is the owner of a tractor No. GTM-7864 and the trolley No. GTG-7859 did not submit any written statement but the opponent No.2 Insurance Company appeared and filed the written statement at Exh:39. The Insurance Company denied all their allegations made in the claim petition and have stated that vehicle was insured with the Insurance Company in the category of commercial vehicle policy and only the risk of driver is covered and the premium of Rs.15/- for the purpose of Workmen Compensation Act is paid and the driver has filed his Workmen Compensation Application No. 18 of 1999 in the Labour Court at Godhara but the risk of the deceased is not covered and has urged the Tribunal to exonerate the Insurance Company.

2.3 Learned Tribunal, after considering the oral and the documentary evidence and the arguments of the learned advocates for the respective parties and the judgment submitted by the learned advocates, held the opponents jointly and severally liable to pay an amount of the compensation and award an amount of Rs.4,20,000/- with interest at the rate of 9% from the date of petition upto 31st December, 2000, and thereafter at 7.5% till realization.

3. Being aggrieved and dissatisfied with the said judgment and award, the appellant-Insurance Company has filed the present appeal mainly contending that the risk of the deceased was not covered under the policy in question and no additional risk qua conductor/cleaner was covered and hence there was no question of the claim being tenable under the provisions of Motor Vehicles Act.

3.1 That learned Tribunal ought to have appreciated that as the claim was not tenable, there was no question of awarding compensation to the claimants and the Insurance company was not liable to satisfy the award. That the learned Tribunal has also ordered the Insurance Company to recover the amount of compensation from the owner of the vehicle, who is opponent No. 1, but the Insurance Company cannot be held liable as the risk is not covered. That the award is grossly exaggerated an