Barkath Ali, J.

1. The short question, which arise for consideration in this appeal under section 173 of th Motor Vehicles Act by the Insurance Company, is whether the owner of goods carried in a goods carriage who has accompanied the goods would come within the purview of section 147(1)of the Motor Vehicles Act, if goods as such were not carried in the vehicle at the time of the accident.

2. Appellant is the 3rd respondent Insurance Company in O.P.(MV) No. 95 of 2006 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The claimants in the O.P. who are respondents 1 to 4 in this appeal filed the O.P. before the Tribunal claiming a compensation of Rs.7,31,000/- for the loss caused to them on account of the death of one Shajahan in a motor accident that happened on June 26, 2005 at about 11.30 a.m. at Kalladikkode, Chungam within the jurisdiction of Mannarkadu Police Station. Claimants are wife and three minor children of the deceased. The parents of the deceased were shown as respondents 4 and 5 in the O.P.

3. The accident happened while the deceased was travelling in a tempo van bearing registration No.KL-9M-3150 driven by the 1st respondent in the O.P. from Perumbavoor to Machanthodu after unloading wooden logs. When they reached at Kalladikkode while giving side to a vehicle coming from the opposite direction, the driver lost control and the tempo van dashed against a tree standing on the side of the road. The deceased sustained serious injuries and he succumbed to the injuries while undergoing treatment in the hospital. Alleging negligence against the 1st respondent driver of the tempo van, the claimants filed the O.P. bfeore the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.7,31,000/-.

4. Respondents 1 and 2 in the O.P., the driver and owner of the offending tempo van, and respondents 4 and 5 in the O.P., the parents of the deceased, remained absent before the Tribunal. The 3rd respondent in the O.P. i.e., appellant herein who is the insurer of the offending tempo van filed a written statement admitting the policy but contended that as the deceased was a gratuitous passenger in a goods vehicle and as no goods were carried in the vehicle when the accident took place, his risk is not covered by the insurance policy of the offending vehicle.

5. PWs.1 and 2 were examined and Exts.A1 to A12 were marked on the side of the claimants. Ext.B1 was marked on the side of the respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to negligence of the 1st respondent driver of the offending tempo van and awarded a compensation of Rs.3,93,500/- with interest at 7% per annum from the date of petition till realization. The Tribunal also found that as the deceased was the owner of the goods carried in the vehicle his risk was also covered by the insurance policy in respect of the said vehicle. The 3rd respondent in the O.P. has come up in appeal challenging the said finding of the Tribunal and also the quantum of compensation awarded by the Tribunal.

6. The following points arise for consideration:-

1) Whether the deceased can be considered as an owner of the goods carried in the vehicle as provided under sub clause (i) of clause (b) of section 147 of the Act and if so whether his risk is covered by the policy issued in respect of the offending vehicle?

2) Whether the compensation awarded is excessive?

7. Point No.1:- Relying on a decision of the Apex Court in United India Insurance Co. Ltd. V. Suresh (2008(4) KLT 552 (SC)) the learned counsel for the appellant argued that at the time of the accident no goods were carried in the vehicle and that therefore the deceased cannot be considered as an owner of the goods carried in the vehicle as provided under section 147(1)(b)(i) of the Motor Vehicles Act and that therefore his risk is not covered by the policy issued in respect of the offending vehicle. We find no merit in the above content