JUDGMENT: 1. THIS order shall also govern the disposal of miscellaneous application No. 1652 of 2006 as both the appeals are arising out of one award dated 17th February, 2006 passed by 1st additional M. A. C. T., Khargone, in Claim case No. 6/05, whereby the claim petition filed by the appellant was allowed, and a sum of Rs. 3,26,300/- has been awarded. 2. IN miscellaneous application No. 1677/ 06 appellant is aggrieved by the inadequacy of the amount award and is also aggrieved by the direction of learned Tribunal whereby respondent No. 3 has been exonerated. In miscellaneous application No. 1652/06 appellants are respondent Nos. 1 and 2. The grievance of respondent Nos. 1 and 2 is also that the respondent No. 3 has wrongly been exonerated and the amount awarded is on higher side. Short facts of the case are that the appellant Gorlibai filed a claim petition alleging that on 30th January, 2004 appellant was travelling in a Commander jeep at about 3:45 p. m., which was being driven by respondent no. 1 rashly and negligently, owned by respondent No. 2 and insu red with respondent no. 3. It was alleged that because of rash and negligent driving of respondent No. 1 the offending Jeep was turtle down, with the result appellant sustained grievous injuries in her leg, knee and on other parts of the body. Appellant was brought to District Hopsital, khargone, where appellant was hospitalized from 31st January, 2004 to 22nd September, 2004. It was alleged that since the accident occurred because of rash and negligent driving of respondent No. 1, therefore, claim petition be allowed and compensation be awarded. 3. THE claim petition was contested by respondent Nos. 1 and 2 and also by respondent no. 3 by filing separate written statement. The defence of the respondent No. 3 was that since the offending vehicle, which was registered as private vehicle, was being used for commercial purpose, therefore, in the facts and circumstances of the case respondent no. 3 be exonerated. 4. AFTERFRAMING of issues and recording of evidence learned Tribunal allowed the claim petition filed by the appellant and awarded a sum of Rs. 3,26,300/- and exonerated the respondent No. 3, against which both the appeals are filed. Mr. Pankaj Sohani, learned Counsel for the appellant submits that appellant was hospitalized roughly for a period of 8 months. 4. AFTERFRAMING of issues and recording of evidence learned Tribunal allowed the claim petition filed by the appellant and awarded a sum of Rs. 3,26,300/- and exonerated the respondent No. 3, against which both the appeals are filed. Mr. Pankaj Sohani, learned Counsel for the appellant submits that appellant was hospitalized roughly for a period of 8 months. It is submitted that appellant sustained compound fracture in right leg and also crush injuries, which the result the leg of the appellant is of no use. It is submitted that learned tribunal assessed the amount of permanent disability on the basis of 100% loss of earning capacity. It is submitted that learned Tribunal awarded a sum of Rs. 3,26,300/- break-up of which is as under: rs. 2,88,000/- Towards permanent disability. Rs. 38. 300/- Towards medical expenses. 5. LEARNED Counsel for the appellant submitted that on number of heads no amount has been awarded and the income of the appellant assessed by the learned Tribunal is also on lower side as the accident is of the year 2004. So far as exoneration of respondent no. 3 is concerned, learned Counsel submits that appellant herself ha stated, that she was not fare paying passenger. Learned Counsel submits that learned Tribunal committed error in relying on the statement alleged to have been given by the appellant before the Police authority under Section 161 of Cr. P. C. and exonerated respondent No. 3, which is not permissible under the law. 6. MR. Sameer Verma, learned Counsel for the respondent Nos. 1 and 2 submits that the amount awarded by the learned Tribunal is already excessive and no case for enhancement is made out. So far as the exoneration of respondent No. 3 is concerned, learned Counsel submits that respondent No. 3 appointed investigator, who has also submitted investigation report in the office of respondent no. 3, but neither investigator was examined nor investigation report has been filed by the respondent No. 3 for the best reasons known to the respondent No. 3. It is submitted that learned Tribunal committed error in placing reliance on the statement given by the appellant and other witnesses under Section 161, cr. P. C. to the police authorities. 3, but neither investigator was examined nor investigation report has been filed by the respondent No. 3 for the best reasons known to the respondent No. 3. It is submitted that learned Tribunal committed error in placing reliance on the statement given by the appellant and other witnesses under Section 161, cr. P. C. to the police authorities. It is submitted that the moment appellant who is injured has stated before the learned Tribunal on oath that she has not stated that she was fare paying passenger before the police authorities, no weightage could have been given on this statement given to the police. For this contention learned Counsel placed reliance on a decision in the matter of Bhanwar Lal verma v, Sharad Tholia, 2007 ACJ 52 . wherein the Hon'ble High Court of Rajasthan, Jaipur Bench has held that conclusions drawn by Tribunal are based on progress and failure of criminal case. Outcome of claim proceedings would not be correlated to and would depend on the outcome of criminal proceedings. It was further observed, that Tribunal is expected to adjudicate a case on the basis of evidence produced before it, without giving too much importance to the outcome of criminal trial. Further reliance is placed on a decision of Madras High Court in the matter of rs. Duraisamy v. D. Arumugam, 2007 (1) An. W. R. 209 (Mad.) = 2007 ACJ 57 wherein it was held that proceedings of criminal case are not binding on the Tribunal and the Tribunal has to rely upon the material placed before it and has to come to an independent conclusion. 7. MR. H. C. Jindal, learned Counsel for respondent No. 3 supports the contention of the learned Counsel for respondent Nos. 1 and 2, so far as it relates to the amount of compensation and submits that no case for enhancement is made out as the amount awarded is already on higher side. Learned counsel submits that learned Tribunal has rightly exonerated the respondent No. 3. It is submitted that the statement recorded by the police authority under Section 161, Cr. P. C. are Ext. NA-2 to Ext. NA-9, wherein the police authority has recorded the statement of ramkubai, who is appellant herein, Hemabai, sukhadibai, Sukalyabai, Dabarsingh and sonabai. Learned counsel submits that learned Tribunal has rightly exonerated the respondent No. 3. It is submitted that the statement recorded by the police authority under Section 161, Cr. P. C. are Ext. NA-2 to Ext. NA-9, wherein the police authority has recorded the statement of ramkubai, who is appellant herein, Hemabai, sukhadibai, Sukalyabai, Dabarsingh and sonabai. It is submitted that all the statements have been recorded at one time and in all the statements it is stated that the persons who were travelling in the offending jeep were fare paying passengers. It is submitted that the statement of criminal case has rightly beer believed by the learned Tribunal. Apart from this it is stated that since appellant herself has filed the document relating to the criminal case has rightly been believed by the learned tribunal. Apart from this it is stated that since appellant herself has filed the document relating to the criminal case, therefore, the same cannot be discarded on the ground that appellant has stated that she has never give such type of statement to the police authority it is submitted that appellant herself has com in witness box and admitted that the offending vehicle is being plied on the same route on daily basis. It is submitted that this part of the statement and also the fact that 5 to 6 persons were injured in the said accident is sufficient to establish that appellant was travelling in the said jeep as a fare paying passenger. It is submitted that since 15 to16 passengers were travelling in the offending jeep at the relevant time and 5 to 6 persons were injured, therefore, all of them filed claim petitions, but the respondent No. 2 settled the claim cases out of the Court against all the other claimants except the appellant. It is submitted that this itself is sufficient that respondent No. 2 was well aware that he was responsible for payment of compensation as the vehicle was being driven in violation of terms and conditions of the insurance policy. Learned Counsel placed reliance on a decision of Division Bench of this Court in the matter of Hamid Khan v. Guddibal, 2003 ACJ 521 = 2003 (3) TAC 340. Learned Counsel placed reliance on a decision of Division Bench of this Court in the matter of Hamid Khan v. Guddibal, 2003 ACJ 521 = 2003 (3) TAC 340. wherein the jeep was insured for self use but 12 to 13 fare paying passengers were being carried in it, a Divisional Bench of this Court held that Insurance Company is not liable and owner and driver of the vehicle are liable for payment of compensation. 8. FURTHER reliance is placed on a decision of this Court in the matter of Pushpa Bai v. Gulab Chand Vaishya, 2008 ACJ 560 . wherein the Insurance Company has disputed the liability on the ground that the policy does not cover the risk of passengers and the vehicle was used for commercial purpose for hire, this court held that Insurance Company has rightly been exonerated. Further reliance is placed on a decision of Supreme Court in the matter of dr. T. V. Jose v. Chacko P. M., in 2001 ACJ 2059 = 2002 (1) TAC 1. wherein a death case of gratuitous passengers in a car, hon'ble Apex Court has held that a third party does not coverliabilitytogratuitous passengers who are not carried for hire or reward. 9. RELIANCE was also placed on a decision of Calcutta High Court in the matter of New india Assurance Co. Ltd. v. Naba Kumar mondal, 2006 ACJ 238 = 2005 (?.) TAC 557. wherein the contention of the insurance Company was that the vehicle insured for private purpose was used for carrying passengers on hire, it was held that since there was breach of specified condition of policy and Insurance Company is absolved from its liability and owner alone is liable for payment of compensation. 10. LEARNED Counsel further placed reliance on a Full Bench decision in the matter of united India Insurance Co. Ltd. v. Celinamma, 2003 acj 623 = 2003 (2) TAC 53. wherein Ernakulam Bench of Kerala High court has held that in a case of private vehicle insurance Company is liable for death of or injuries sustained by person carried in a private vehicle gratuitously, Insurance Company is not liable. Lastly learned Counsel placed reliance on a decision of Full Bench of this Court in the matterof Bhavsingh v. Smt. Savirai, 2008 (I)M. P. J. R. (F. B.) 11. Lastly learned Counsel placed reliance on a decision of Full Bench of this Court in the matterof Bhavsingh v. Smt. Savirai, 2008 (I)M. P. J. R. (F. B.) 11. wherein it was held that any person other than the insurer and insured are included within the term of third party. The insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of Section 147 of the Act or under the terms and conditions of the policy of insurance. Hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under Section 147 of the Act or under the terms and conditions of the insurance policy. 11. FROM perusal of the record, it appears that the FIR which is Ext. A-1 was lodged by one Ramyash Tiwari who was not travelling at the relevant time in the offending jeep. In the fir it is nowhere stated that the appellant was travelling in the offending jeep as a fare paying passenger. N. A. No. 2 to N. A. No. 9 are the statements, of Ramku Bai, Hema Bai, Jhulu bai, Rukhdi Bai, Jhabar Singh, Sona Bai and gorlibai, who is appellant, which were recorded by the police between 30th January, 2004 to 4th february, 2004. Appellant has examined herself as A. W. 1 and Dr. D. P. Joshi A. W. 2. While the respondent No. 3 Insurance Company has examined (Krishnalal (N. A. W. 1), Ramyash tiwari (N. A. W. 2), Arun K. Singh (N. A. W. 3)and Manoharlal himself has come in the witness box as N. A. W. 1 A. W. 1 Gorli Bai (appellant herein) has specifically denied that she was a fare paying passenger. She has also denied that she has given the statement to the police to the effect that she paid a sum of Rs. 5/- as fare. Raymash Tiwari who is the sub-inspector, police, has admitted in his statement that at the time of recording of the statement Gorli bai was in the hospital and was grievously injured. Ramyash Tiwari has not stated in his examination-in-chief that he has recorded the statement of Gorli Bai relating to payment of fare. 5/- as fare. Raymash Tiwari who is the sub-inspector, police, has admitted in his statement that at the time of recording of the statement Gorli bai was in the hospital and was grievously injured. Ramyash Tiwari has not stated in his examination-in-chief that he has recorded the statement of Gorli Bai relating to payment of fare. Respondent No. 3 has not taken any steps for calling the record of criminal case and also did not controvert the appellant to the effect that she has stated to the police authorities that she was a fare paying passenger. For the purpose of contradiction it was necessary for the respondent No. 3 to call the original record of the criminal case, which was containing the statement of appellant. Only on the basis of admission of appellant to the effect that the offending vehicle passes through that route on daily basis, it cannot be said that the appellant was a fare paying passenger. Manoharlal who is respondent no. 2 herein, has examined himself and he has stated that he was himself travelling in the offending jeep at the relevant time. He has further stated that the appellant was working at her place and he was knowing the appellant, therefore, appellant was allowed to travel in the offending jeep. Manoharlal was cross-examined by respondent No. 3 and it has been suggested by the respondent No. 3 that in connivance with policy party, statement of the appellant was got changed. Statement of appellant (N. A. 9) is original statement or the changed statement could have been proved only by calling the original record of the criminal case for which no steps have been taken by the respondent No. 3. 12. IT is true that some other claim cases where also filed by the claimants who were travelling in the offending jeep and the matters were settled by the respondent No. 2 out of the court. But, only on the basis of this it cannot be said that the appellant was a fare paying passenger. Respondent No. 3 did not bother to call the other passengers who were travelling at the relevant time to prove the fact that they were fare paying passengers. It is not in dispute that respondent No. 3 has appointed an investigator who has also submitted investigation report. Neither the investigation report has been filed nor investigator was examined. Respondent No. 3 did not bother to call the other passengers who were travelling at the relevant time to prove the fact that they were fare paying passengers. It is not in dispute that respondent No. 3 has appointed an investigator who has also submitted investigation report. Neither the investigation report has been filed nor investigator was examined. In the peculiar facts and circumstances of the case, in the opinion of this Court learned tribunal has committed error in exonerating the respondent No. 3. 13. SO far as the compensation is concerned, looking to the injuries sustained by the appellant, the amount awarded by the learned Tribunal appears to be just and reasonable which requires no enhancement. In view of this, the appeal filed by the appellant stands allowed in part. Findings of learned tribunal so far as it relates to the exoneration of respondent No. 3 is concerned stands set aside. The liability of payment of compensation of respondent No. 3 shall be joint and several with respondent Nos. 1 and 2. Learned Tribunal is directed to deposit 80% of the amount awarded in the name of appellant in a nationalized bank, having its branch office nearest to the residence of appellant with a further direction to the concerning branch not to allow any loan on the amount of F. D. R. and the interest shall be payable to the appellant on monthly basis by crediting the same in her saving Bank Account. 14. WITH the aforesaid directions this appeal stand disposed off. No order as to costs.