- (1.)The present appellant in both these appeals has preferred these appeals against the common judgment and award dated 18.10.2008 passed by the learned Motor Accident Claims Tribunal (Aux.), Fast Track Court No. 3, Palanpur (for brevity, 'the Tribunal') in Motor Accident Claim Petition (MACP) Nos. 279 of 1992 and 280 of 1992, whereby, the Tribunal was pleased to award an amount of Rs.1,94,200/- to the claimants of Motor Accident Claim Petition No. 279 of 1992 and Rs.1,69,000/- to the claimants of Motor Accident Claim Petition No. 280 of 1992, along with interest @ 9% per annum from the date of application till realization of the amount, holding jointly and severally liable to pay the same to all the opponents therein.
(2.)Short facts of the present case may be referred as under:
2.1 On 23.04.1992, the family members of the respective claimants of both the petitions including deceased Ratanben and Maniben were travelling in a tempo bearing registration No. GJ3T-5759 of the ownership of opponent No. 2, as owner of the goods. That, at about 2:30 a.m., on Suigam - Limbuni road, within the jurisdiction of Suigam police station, the driver of the tempo drove his vehicle rashly and negligently, as a result of which, the tempo turned turtle. Ratanben and Maniben, travelling in the said tempo, were severely injured. They were shifted to primary health center at Suigam and during the treatment, they succumbed to the injuries. As per the averments made in the respective claim petitions, the age of Ratanben was 50 years and by doing agriculture work, she was earning Rs.1,500/- per month. Age of Maniben was 20 years at the time of accident and she was doing labour work and was earning Rs.1,500/- per month only. That, the family members, the claimants have suffered great mental shock on account of sad demise of their family members as well as lost love and affection. That, they had spent huge amount towards medical treatment of the deceased and funeral ceremony. Accordingly, they had prayed to pass an award in favour of the claimants to the tune of Rs.3 lakh along with interest in each petition holding liability of the opponents jointly and severally.

2.2 The Tribunal issued notice to the opponents. The opponent No. 2 appeared through his advocate but did not file the written statement. The opponent No. 3 also appeared before the Tribunal and filed its written statement vide exh. 22 in MACP No. 279 of 1992 and exh. 24 in MACP No. 280 of 1992. The contents averred by the claimants in their respective petitions were mainly denied by this opponent stating that there was no valid driving licence with the driver. It was further contended that motor vehicle tempo involved in the accident was a goods vehicle and more than two persons were sitting in the vehicle at the time of accident and therefore, it was a clear breach of the policy condition and no liability of the insurance company can be fastened by the Tribunal. Ultimately, it was urged by this opponent to dismiss the claim petition with costs.

2.3 The learned Tribunal, framed the Issues and after considering the evidence produced on record and the arguments advanced by the learned advocates for the respective parties, was pleased to pass the award, as aforesaid. The present appellant, being aggrieved and dissatisfied with the aforesaid judgment and award, has preferred these appeals.

(3.)Heard, Mr. H. G. Mazmudar, learned counsel for the appellant and Mr. Anmol Purohit, learned counsel for the respondent Nos. 1 to 5 - original claimants.
3.1 It was submitted by the learned counsel for the appellant that the impugned judgment and award passed by the Tribunal is against the evidence on record and merits of the case. It was further submitted that there was clear breach of condition of insurance policy as the vehicle was not for hire and reward. The deceased were travelling in the goods vehicle and therefore, the insurance company cannot be held liable and ought to have been exonerated. It is further submitted that the FIR, wherein, it was specifically admitted that about 12 persons had hired the tempo to go to their homes and they were travelling as paid passengers in the goods vehicle, was not properly considered by the Tribunal. That, this accident was occurred on 23.04.1992 before the amendment in 1994 in the MV Act and that, no passenger or owner of the goods were permitted to travel in the goods vehicle. That, the Tribunal has committed an error in awarding the compensation holding the liability of the insurance company. In support of his arguments, learned counsel has placed reliance on a decision in the case of Mallawwa (Smt.) and Others V. Oriental Insurance Co. Ltd. and Others, reported in (1999) 1 SCC 403 and another decision in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, reported in AIR 2003 SC 607. It was further argued that the question of law, if any, could be raised by the insurance company at the appellate stage. It can be permitted if it goes to the root of the case. On this issue, the learned counsel for the appellant has relied upon a decision in the case of Oriental Fire and General Insurance Co. V. Aminbhai Pirmohomad Master and Others, reported in 1986 (2) GLR 986.