JUDGMENT 1. - This appeal has filed by the Insurance Company against the judgment and award dated 26.7.1995 passed by the learned Judge, Motor Accident Claims Tribunal, Jaisalmer in MACT Case No.43/91 whereby the learned Judge has allowed the claim petition and awarded compensation in favour of claimants while holding the Insurance Company liable for the payment of compensation and has awarded a total compensation of Rs.2,38,000/- plus interest @ 12% per annum from the date of filing the application i.e. 3.11.1990. 2. Briefly stated the facts giving rise to filing of this appeal are that, a claim petition was preferred by claimants (husband and children of deceased-Smt.Timo) before the Motor Accident Claims Tribunal, Jaisalmer (in short 'the Tribunal') under Section 166 of the M.V. Act, 1988 read with Section 2 of the Rajasthan Accident Claims Tribunal Rules for awarding compensation for the untimely death of Smt. Timo in motor accident. As per the claim petition on 8.5.1990 the deceased Smt. Timo alongwith her husband-Uma Ram and two sons, namely, Jogram and Sagra Ram (in all four) were going on foot from village Sonu and on the way they took lift from truck No.RJM- 1371, which was being driven by Babu Singh (respondent No.3) and they sat in the cabin of truck. When the said truck reached near village Mokala on the Ramgarh-Jaisalmer road, it dashed with truck No.RJC-2881 which was going ahead of it and abruptly applied brake without giving signal and caused accident. In the said accident, Smt. Timo got badly crushed inside the cabin, claimant-Uma Ram sustained injury on his knee and the two children also suffered injuries. It was stated in the claim petition that Smt. Timo was aged 26 years and was earning Rs.27/- per day by doing labour. The police after investigation, filed challan against the driver-Babu Lal. The claimants claimed a total of Rs.4,31,800/- as compensation on various heads. 3. In reply, the non-claimants No.1 and 3, who are the owner and driver respectively of truck No.RJM-1371 took a stand that the driver of truck was not at fault for causing accident. Further, the amount claimed by way of claim petition was also stated to be exorbitant. Thus, it was prayed that the claim petition may be dismissed. 4. 3. In reply, the non-claimants No.1 and 3, who are the owner and driver respectively of truck No.RJM-1371 took a stand that the driver of truck was not at fault for causing accident. Further, the amount claimed by way of claim petition was also stated to be exorbitant. Thus, it was prayed that the claim petition may be dismissed. 4. A reply was also submitted by non-claimants No.5, 6 and 7 insurer of truck No.RJM-1371 in which Smt. Timo (deceased) was sitting and a specific plea was raised that the truck was insured for carrying goods and not for carrying passengers and that no risk of passengers was taken by the Insurance Company, as such, there was a clear cut violation of the terms and conditions of policy, therefore, the Insurance Company was not responsible for the payment of compensation. Further it was alleged that the compensation demanded is on higher side. Lastly it was prayed to dismiss the claim petition. No reply was submitted on behalf of non-claimants No.2, 4 and 8. 5. On the basis of pleadings of the parties, the following issues were framed by the Tribunal:- " 1- D;k vizkFkhZ la[;k ,d ds M~kbZoj vizkFkhZ la[;k rhu us fnukad 08-05-1990 dks tSlyesj jkex<+ jksM+ ij eksdyk xkao ds if'pe dh rjQ oDr 10-30 ,0,e0 ij okgu la[;k vkj0ts0,e0 1371 dks rst jQ~rkj ls pykdj izkFkhZ dh iRuh Vheksa dh e`R;q dkfjr dh\ 2- D;k izkFkhZ vizkFkhZx.k ls {kfriwfrZ ds :i esa 4]31]800@& :i;s izkIr djus dk vf/kdkjh gS\ 3- D;k vizkFkhZx.k 5] 6 o 7 ds tokc ds ethn mtjkr dh pj.k 1] 2] 3 esa of.kZr dkj.kksa ls vizkFkhZx.k dh dksbZ ftEesokjh ugha curh gS\ 4- D;k eksVj vf/kfu;e dh /kkjk 95 o 96 ds rgr vizkFkhZ la[;k 5] 6 o 7 dk nkf;Ro lfefr gS\ 5- nknjlhA " 6. During the trial on behalf of claimants AW-1 Uma Ram, AW-2 Susa Ram were examined and certain documents were produced and got exhibited. In defence, statement of NAW-1 Babu Singh was recorded on behalf of non-claimant respondents. 7. After hearing both the parties, the learned Tribunal held that the accident occurred due to rash and negligent driving of truck No.RJM-1371 being driven by its driver-Babu Singh, in which, Smt. Temo died and Uma Ram himself sustained injuries. In defence, statement of NAW-1 Babu Singh was recorded on behalf of non-claimant respondents. 7. After hearing both the parties, the learned Tribunal held that the accident occurred due to rash and negligent driving of truck No.RJM-1371 being driven by its driver-Babu Singh, in which, Smt. Temo died and Uma Ram himself sustained injuries. The learned Tribunal further on the basis of material available on record, discarded the other objections taken by the Insurance Company and determined the compensation and awarded a total sum of Rs.2,38,000/- plus interest @ 12% per annum on the due amount and vide its judgment and award dated 26.7.1995 held responsible the driver, owner as well as insurance company (appellant) of the offending truck for the payment of compensation to the claimants. 8. Being aggrieved by the judgment and award dated 26.7.1995, the instant appeal has been preferred by the appellant. United India Insurance Co. Limited, before this Court. Notice of the appeal was issued, record was called and the arguments were heard. Cross-objection under Order 41 Rule 22 C.P.C. was filed by the claimant-respondents for enhancement of the amount of compensation awarded by the Tribunal, that was also heard together with the appeal. 9. During the course of arguments learned counsel for the appellant submitted that the learned Tribunal has not appreciated and considered the material available on record and has given erroneous finding on the issues, thus, the judgment and award is not sustainable. It was contended that admittedly the vehicle in question was a truck, being a goods vehicle, it was meant for carrying goods and not for carrying the passengers, and the deceased was travelling in truck No.RJM-1371 as a gratuitous passenger at her own risk. It was contended that the appellant has not taken any premium with regard to any mishappening happened to a passenger travelling in truck, therefore, the Insurance Company could not be made responsible for the payment of compensation. The learned Tribunal has wrongly concluded and decided the issues and has erroneously held the Insurance Company liable for the payment of compensation. The learned counsel for the appellant has cited the decision given by this Court in the case of New India Assurance Company Ltd v. Smt. Amarti & Ors and two connected appeal decided on 7.2.2008 and stated that on the basis of the ratio held in that judgment, the present appal may be allowed. The learned counsel for the appellant has cited the decision given by this Court in the case of New India Assurance Company Ltd v. Smt. Amarti & Ors and two connected appeal decided on 7.2.2008 and stated that on the basis of the ratio held in that judgment, the present appal may be allowed. It was urged that now it is well settled that in the cases of passengers travelling in the goods vehicle in the absence of any contract otherwise, Insurance Company cannot be held responsible for the payment of compensation. On the basis of these contentions, it was contended that the appeal may be allowed and the judgment and award to the extent of holding the appellant liable for payment of compensation be set aside and quashed. 10. On the contrary, the learned counsel for the respondent-claimants refuted the contention and supported the judgment of learned Tribunal. It was contended that the deceased was permitted to travel in the truck with the consent of the driver while serving as a driver of the owner of the truck and the vehicle was insured, therefore, the Insurance Company was rightly held responsible for the payment of compensation to the claimants. Thus, it was was prayed that the appeal may be disallowed and the judgment and award passed by the learned Tribunal be maintained. The learned counsel for the claimant-respondents further in support of his cross-objection submitted that the learned Tribunal has not properly considered the material with reference to determine the loss caused to the claimants due to death of Smt. Timo and less amount has been awarded. It was contended that the learned Tribunal has not awarded appropriate amount on account of mental agony due to death of Timo, therefore, the cross-objection may be accepted and the compensation may be enhanced reasonably. The other side opposed it and prayed to dismiss the same. 11. I have considered the rival submissions and perused the findings on each issues and conclusion dawn thereon by the learned Tribunal. I have also perused the judgment referred by the learned counsel for the appellant. The main point for consideration is whether the learned Tribunal was right in holding the Insurance Company responsible for the payment of compensation to the claimants ? Further considering the cross-objection whether the awarded compensation deserves to be enhanced ? 12. I have also perused the judgment referred by the learned counsel for the appellant. The main point for consideration is whether the learned Tribunal was right in holding the Insurance Company responsible for the payment of compensation to the claimants ? Further considering the cross-objection whether the awarded compensation deserves to be enhanced ? 12. It was mainly contended by the Insurance Company that the vehicle in question was a goods carrier and they have not taken the risk of passenger. In this respect, the statement of claimants are relevant, in which, they have clearly stated that the deceased travelled in the goods vehicle. The claimants, driver or owner of the truck have not stated despite the truck in question being a goods vehicle the risk of passenger was taken over by the Insurance Company. As per the settled position of law, the Insurance Company cannot be held responsible in case of a person travelling in goods vehicle, if they have not made contract otherwise. In this respect the cover-note is on record, which substantiates the fact that no risk has been taken by the Insurance Company in respect of passenger travelling in vehicle in question. The learned Tribunal has not properly considered and appreciated the material available on record and held the Insurance Company was liable for payment of compensation but to the extent of appellant that finding is not sustainable and that is liable to be quashed. So far as the contentions raised by the appellant-Insurance Company with regard to the quantum of compensation is concerned, as the appeal being filed by the Insurance Company their defences are limited, therefore, the contentions in this respect are not entertainable. 13. On the basis of the aforesaid discussion, the judgment and award passed by the learned Tribunal holding the responsibility of Insurance Company for payment of compensation to that extent is liable to be quashed and the appeal deserves to be allowed. 14. I have also considered the contention placed by the learned counsel for the claimant-respondents in respect of cross objection for enhancement of awarded compensation but considering the material in this respect and the conclusions drawn by the learned Tribunal, the awarded compensation is not found inadequate and unreasonable, therefore, the cross-objection is liable to be rejected. 15. 14. I have also considered the contention placed by the learned counsel for the claimant-respondents in respect of cross objection for enhancement of awarded compensation but considering the material in this respect and the conclusions drawn by the learned Tribunal, the awarded compensation is not found inadequate and unreasonable, therefore, the cross-objection is liable to be rejected. 15. In the result, the appeal filed by the appellant- Insurance Company is allowed and the judgment and award dated 26.7.1995 passed by the Motor Accident Claims Tribunal, Jaisalmer is set aside to the extent of holding liability of the Insurance Company i.e. United India Insurance Co. and other respondents No.5, 6 and 7 for payment of compensation. The cross-objection filed by the claimant-respondents are rejected hereby. The claimants will be free and entitled to recover the due amount of compensation as awarded by the learned Tribunal from the owner and driver of the vehicle jointly and severally. It is also directed that Insurance Company will be entitled to recover the amount, if any paid under "No Fault Liability" from the registered owner of the truck. Rest of the judgment is confirmed. No order as to costs.Appeal allowed. *******