The liability of the insurance company and the adequacy of compensation in motor vehicle accident cases must be determined based on the evidence and relevant factors, and the court has the discretion to work out a reasonable compensation.

( 1 ) THE decision rendered in this appeal shall also govern disposal of other connected appeal being M. A. No. 154 of 2004 because both the appeals arise out of the same accident case and impugned common award.

( 2 ) THIS is an appeal filed by claimants under section 173 of Motor Vehicles Act against an award dated 3. 9. 2003, passed by learned Additional Member, Motor Accidents Claims Tribunal, Jhabua in Claim case No. 2 of 1998. By impugned award, the Tribunal partly allowed the claim petition filed by the claimant by awarding a sum of Rs. 4,31,250 for the death of Pinju. However, the learned Tribunal exonerated the insurance company from the liability.

( 3 ) AS observed supra, it is a death case. Pinju, aged around 20 to 25 years while travelling in Matador (MP 04-K 2159) on 5. 4. 1998 died along with others, giving rise to the filing of the claim petition by his legal representatives out of which this appeal arises seeking compensation for his death. The case was not contested by the owner and driver of Matador and they remained exparte since inception. Whereas, it was only contested by insurance company of Matador,. e. , the insurer of the vehicle. Claimants adduced evidence by examining 4 witnesses. The Tribunal by the impugned award, partly allowed the claim petition by awarding a total sum of Rs. 4,31,250. However, while awarding the compensation, the Tribunal exonerated the insurance company from the liability. It is against this award, the claimants are in appeal, contending that some more amount should have been awarded to the claimants than what has been awarded to the claimants by the Tribunal and secondly, insurance company should not have been exonerated from the liability.

( 4 ) HEARD Mr. S. Patwa, learned counsel for the appellants and Mr. Vinay Vijayvargiya, learned counsel for respondent no. 3.

( 5 ) HAVING heard learned counsel for the parties and having perused record of the case, we find substance in the submissions urged by learned counsel for the appellants. As a consequence, appeal deserves to be allowed in part.

( 6 ) COMING to the question regarding exonerating of the insurance company from the liability is concerned, first we are of the view that Tribunal has erred and hence the finding on this issue need to be reversed in favour of the claimants. In our view, the oral as also documentary evidence adduced by the claimants prove that deceased Pinju was travelling in goods vehicle along with his goods and hence, his risk was covered. It is not in dispute that the vehicle in question,. e. , Matador was a goods vehicle and was being used by the insured as goods vehicle. It is also not in dispute that it was also insured as such. It is also proved by Exh. P1 (F.. R.) and Exh. D1,. e. , the report of private surveyor that on the date of accident, the vehicle was full of wheat. In other words, it is not in dispute that the offending vehicle was being used for carrying wheat bags. It has also come in evidence of Kesari Bai, PW 1, widow of deceased as also Nan Singh (an eyewitness), PW 3, that Pinju was travelling in vehicle along with his wheat on payment of Rs. 100. Nan Singh, PW 3, was the person who was also travelling in same vehicle like Pinju along with his goods (wheat) on payment and survived. When these two witnesses have deposed that Pinju was travelling in Matador,. e. , goods vehicle along with their goods on payment then, in our opinion, the risk of owner of goods travelling in goods vehicle is covered. In the absence of any rebuttal evidence led by non-applicant No. 1/non applicant No. 2,. e. , owner and driver of the vehicle who remained ex pane and were not examined by insurance company as their witnesses, we have no reason to disbelieve the statements of the two witnesses examined by the claimants. Nothing prevented the non-applicant Nos. 1 and 2 to come in witness-box and depose against the claimants that Pinju did not pay any charges to occupy the goods vehicle or that Matador