JUDGMENT :

NISHA M. THAKORE, J.

1. The present appeal is filed at the instance of the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”), being aggrieved and dissatisfied with the judgment and award dated 05.02.2015 passed by learned Motor Accident Claims Tribunal (Main), Bhavnagar in MACP No. 210 of 2007.

2. By the said judgment and award the Tribunal has allowed the claim petition preferred by the original claimants under Section 166 of the Act, 1988, holding them entitled to recover amount of Rs. 9,54,000/- as compensation, with interest at the rate of 9% per annum from the date of claim petition till its actual realisation and cost, from the original opponents jointly and severally.

3. Considering the grounds raised in the appeal and the submissions made by learned advocate for the appellant-Insurance Company, this Court vide order dated 10.06.2015, had admitted the appeal. In the interim application for stay, appropriate directions were issued to deposit the entire amount of compensation to the appellant-Insurance Company. Subsequently vide order dated 28.07.2015, considering the fact that the entire awarded amount has been deposited with the concerned Tribunal, appropriate directions were issued to deposit the award amount in the nationalised bank in a fixed deposit scheme. The Nazir was directed to keep the custody of the certificates with him and the fixed deposit was directed to be renewed with cumulative interest in the disposal of the appeal. Thus, the original-claimants have not been permitted to withdraw the award amount which is lying in the fixed deposit with the concerned bank.

4. The record suggest that the notice of admission of appeal has been duly served upon the respondents except respondent No. 5. Respondents No. 1 to 4 and respondent No. 7 are represented through their respective lawyers. With the able assistance of learned advocate on record and considering the fact that the contesting respondent have been served the notice, the appeal was peremptorily heard finally.

ARGUMENTS ON BEHALF OF APPELLANT :

5. Learned advocate Ms. Dimple Thaker appearing for the appellant-Insurance Company has vehemently assailed the impugned judgment and award passed by the Tribunal by raising the issue of liability fastened on the appellant insurance company to pay the entire amount of compensation.

5.1 It was submitted that the Tribunal committed error in holding the appellant-Insurance Company liable despite the undisputed facts; that the insured vehicle was a goods carriage vehicle and considering the sitting capacity of the insured vehicle as evident from the R.C book produced on record and the permit issued by the competent authority about use of vehicle. It has been established by the appellant-insurance company that the deceased was traveling as an unauthorised passenger in a goods carriage vehicle.

5.2 She has assailed the findings and reasons assigned by the Tribunal, on the ground that the panchnama produced on record is silent about the goods (sweet potatoes) being found at the scene of accident. Despite aforesaid evidence on record the Tribunal has given undue weightage to the oral evidence of the claimant to arrive at the conclusion that the deceased was traveling with the goods in the goods vehicle. Learned advocate had placed heavy reliance upon the panchnama produced on record at Exh. 44.

5.3 She has further relied upon the decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Bommithi Subhayamma reported in 2005 (12) SCC 243. Inviting my attention to the facts of the case, learned advocate has submitted that the deceased was traveling in the lorry as a gratuitous passenger. Considering the fact that the insured vehicle was a goods vehicle, the Hon’ble Supreme Court had held that the Insurance company cannot be held liable for the payment of any compensation to gratuitous passengers traveling in a goods vehicle. Learned advocate has invited m