(Deepak Gupta, J.) - By this judgment, the aforesaid appeals are being disposed of as they both arise out of the same award.

2.Briefly stated the facts of the case are that Smt. Balbir Kaur and Ajaib Singh, (hereinafter referred to as the claimants), filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as the Act). claiming compensation of Rs. 10 lacs on account of the death of their son Fateh Singh in a motor vehicle accident which took place on 8.4.2003 at Mauja Kathog, Police Station Jawalamukhi, Tehsil Dehra, District Kangra, H.P. In the petition it was alleged that the deceased after performing Puja in Jawalamukhi temple along with other family members and Sangat were going from Jawalamukhi to Chintpurni when the accident took place. It was alleged that the accident occurred due to the rash and negligent driving of respondent No. 2, who lost control of the vehicle. The deceased was a young boy of 17 years and was studying in Class 9th. It was also alleged that he was doing the welding work in a workshop in extra time. It was also averred that he was also doing the agriculture work. The total income of the deceased from these pursuits was stated to be Rs. 5000/- per month. The vehicle in question was a Tata Tempo 407 bearing registration No. PB-09-A-5259.

3.The owner and driver of the vehicle filed a common reply. According to them, the vehicle had been hired by Sh Ajaib Singh father of the deceased for carrying Lungar material which was used at Jawalamukhi. It was further alleged that Fateh Singh was traveling in the vehicle as the owner of the material and after unloading the material, the vehicle was returning when the accident took place. The Insurance Company in its reply took up a plea that vehicle was a goods vehicle and no passenger could be carried in it and, therefore, it was not liable to pay compensation.

4.The learned Tribunal vide the impugned award has come to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the Tempo. He held that the claimants were entitled to Rs. 1,45,000/- as compensation. He, however, came to the conclusion that since the deceased was an unauthorized passenger in a goods vehicle, therefore, the Insurance Company is not liable to pay compensation. He, however, directed the Insurance Company to deposit the amount of insurance and held it entitled to recover the amount of compensation from the owner of the vehicle. Aggrieved by the said award, the Insurance Company has filed FAO No. 92 of 2005 wherein it has contended that once it was found that the deceased was an unauthorized passenger in a goods vehicle, no liability could have been fastened upon the Insurance Company.

5.On the other hand, the claimants have also filed an appeal in which they have prayed for enhancement of compensation. No appeal was filed by the owner of the vehicle. During the course of arguments, it has been argued by the learned Counsel for the claimants that in fact the learned Tribunal erred in holding that the deceased was an unauthorized passenger in the vehicle.

6.As noted above, the claimants in their case set up before the learned Tribunal had not made any averment as to in what capacity the deceased was traveling in the tempo. All that was stated was that they had gone to jawalamukhi temple to pay obeisance and after performing Puja, when they were returning the accident took place.

7.PW2 while appearing in the witness box set up a new case that his son and he were traveling in the Tempo after unloading langer material at Jawalamukhi. In cross-examination, he admitted the suggestion put to him by the owner that the vehicle had been hired for transportation of langer material. He denied the suggestion that the deceased was only a student and was not doing any other work.

8.PW4 Gurdeep Singh has stated that the deceased Fateh Singh used to do welding work with him. According to