Judgment H.K. Rathod, J.—Heard learned Advocate Ms. Megha Jani for appellant Insurance Co. and learned Advocate Mr. S.M. Gohil as well as learned Advocate Mr. Sunil S. Trivedi for respective respondents claimants in this group of appeals. 2. By filing this group of appeals, appellalnt has challenged common award made by MACT (Main) Banaskantha District at Palanpur dated 11.07.2008 in MACP No. 217 of 1990, wherein claims Tribunal has awarded Rs. 4,33,000.00 in favour of claimants and jointly and severally against opponents with 9 per cent interest along with proportionate costs. In MACP No. 365 of 1990, claims Tribunal has awarded Rs. 4,13,800/- in favour of claimants and jointly and severally against opponents with 9 per cent interest along with proportionate costs. In MACP No. 445/90, claims Tribunal has awarded Rs. 3,70,600/- in favour of claimants and jointly and severally against opponents with 9 per cent interest along with proportionate costs. In MACP No. 446/90, claims Tribunal has awarded Rs. 3,92,200/- in favour of claimants and jointly and severally against opponents with 9 per cent interest along with proportionate costs. In MACP No. 471/90, claims Tribunal has awarded Rs. 48,284.00 in favour of claimants and jointly and severally against opponents with 9 per cent interest along with proportionate costs. Common award made by claims Tribunal in aforesaid claim petitions is challenged by appellant insurance company in this group of appeals. 3. Accident occurred on 25.02.1990 at about 10.30 a.m. on account of rash and negligent driving of driver of offending vehicle being ST Bus bearing Registration No. GJ-01-T-9008 and driver of offending vehicle being tempo bearing registration No. GRY-5566. Driver of tempo received injury in said accident and also filed claim petition No. 206 of 1990 and gave his evidence vide Exh. 179. Claims Tribunal has examined issue of negligence and has come to conclusion that driver of bus of GSRTC is negligent to the extent of 70 per cent and driver of tempo is negligent to the extent of 30 per cent and accordingly passed impugned award holding opponents jointly and severally liable to pay compensation awarded by it. Present appellant is insurance company of tempo involved in accident took place in 1990. Claim Petitions filed by claimants in 1990 remained pending for about eighteen years before claims Tribunal for decision. After passage of eighteen years, claims Tribunal made common award which is under challenge in these appeals. 4. Present appellant is insurance company of tempo involved in accident took place in 1990. Claim Petitions filed by claimants in 1990 remained pending for about eighteen years before claims Tribunal for decision. After passage of eighteen years, claims Tribunal made common award which is under challenge in these appeals. 4. Accident in question took place on 25.02.1990 due to collision between aforesaid two vehicles. According to insurance company, undisputably, victim was in tempo. learned Advocate Ms. Jani appearing for appellant insurance company has submitted that it is an established position of law as laid down by Apex Court in case of New India Assurance Co. vs. Asha Rani reported in 2003 ACJ 1 that risk of any person traveling as an owner of goods in a goods vehicle is not required to be indemnified by insurance company. As per her submission, as per Section 147 of MV Act, 1988 as applicable on the date of accident, vehicle insured by appellant could not have been used for carriage of any passenger either as gratuitous or in any other capacity. She submitted that claims Tribunal has committed an error in not appreciating that the policy of vehicle described it as ‘commercial vehicle’ and bear its use for carrying passengers except employees not exceeding six in number. As per her submission, it was not case of any of claimants before claims Tribunal that victim was traveling in vehicle as employee. She submitted that Certificate of Registration produced at Exh. 147 is applicable on the date of accident and judgment in case of Asha Rani, appellant insurance company in this case ought not to have been held liable to indemnify insured. She submitted that claims Tribunal has failed to appreciate detailed written statement filed by insurance company on 07.07.2008, specifically contending that even it is accepted that victims were travelling as owners of goods or by paying fare, insurance company would still not be liable as the accident took place on 25.02.90, prior to amendment in Section 147 of MV Act, 1988. As per her submission, judgment of Hon’ble Supreme Court in New India Assurance Co. As per her submission, judgment of Hon’ble Supreme Court in New India Assurance Co. vs. Asha Rani reported in 2003 ACJ 1 was also relied on but claims Tribunal has not at all considered same as well as aforesaid submissions raised by insurance company and has erred in holding that insurance company is liable to indemnify insured which amounts to an error committed by claims Tribunal requiring interference of this Court in this group of appeals. She also submitted that before claims tribunal, it was also not established by claimants that on the date of accident, they were traveling as owner of goods. Except that, no other submission is made by learned Advocate Ms. Jani before this Court and except decision of Apex Court in Asha Rani (Supra), no other decision is referred to and relied on by learned Advocate Ms. Jani before this Court. 5. On the other hand, it was submitted by Mr. Gohil as well as Mr. Trivedi, learned Advocates appearing for original claimants in this group of appeals submitted that contention which has not been raised specifically by appellant before claims tribunal, then, claims Tribunal is not duty bound to consider it while passing award in claim petition. They submitted that from entire award made by claims tribunal, it does not appear that any such contention was raised by insurance company before claims Tribunal as alleged by appellant before this court. Therefore, claims Tribunal has rightly examined matter on the basis of facts produced by respective parties and claims Tribunal has not committed any error which would require interference of this Court in these appeals. They also submitted that if, according to insurance company, any such contention raised by it in its written statement has not been considered by claims tribunal, then, remedy is available to insurance company to approach claims Tribunal concerned by filing necessary application for review before concerned claims Tribunal but, it is not open for insurance company to raise such contention before this Court for the first time. They also submitted that if any contention is not finding place in award, then, presumption would be that such contention has not been raised by insurance company before claims tribunal. They also submitted that Mr. They also submitted that if any contention is not finding place in award, then, presumption would be that such contention has not been raised by insurance company before claims tribunal. They also submitted that Mr. B.A. Tanvar, advocate for insurance company who had appeared before claims Tribunal has not filed affidavit before this Court to the effect that this question raised by him on behalf of appellant insurance company specifically was not examined and considered by claims tribunal. As per their submission, mere filing of written statement and/or written statement is not enough but advocate for party must have to prove such contention before claims Tribunal and to invite attention of claims Tribunal on such contention for giving judgment on such contention, otherwise, claims Tribunal cannot examine such contention which are not pressed into service before claims tribunal, therefore, according to him, no such contention was raised by Advocate Mr. Tanvar appearing for insurance company before claims Tribunal in respect of amended provisions of Section 147 of MV Act, 1988 having effect from 14.11.1994, therefore, entire matter remained to decide factual controversy between the parties whether on the date of accident, victims were traveling as owner of the goods or not and that controversy has been rightly resolved by claims Tribunal in case before hand on the basis of evidence on record, by relying on the evidence of claimants and there was no rebuttal evidence produced by insurance company before claims tribunal, therefore, they submitted that fact finding given by claims Tribunal is not required to be interfered with by this Court in this group of appeals since claims Tribunal has rightly decided matter and not committed any error. Therefore, according to them, appeals are required to be dismissed. 6. It is required to be noted that learned Advocate Ms. Megha Jani has not raised any contention before this Court in respect of quantum and negligence decided by claims Tribunal but she is raising only contention about liability of insurance company under Motor Vehicles Act, 1988 prior to amendment of Section 147 in 1994. 7. I have considered submissions made by learned advocates from both sides. I have also perused impugned award. For examining question of law which has been raised before this Court by learned Advocate for appellant, it is necessary to consider written statement filed by insurance company before claims Tribunal at Exh.14. 7. I have considered submissions made by learned advocates from both sides. I have also perused impugned award. For examining question of law which has been raised before this Court by learned Advocate for appellant, it is necessary to consider written statement filed by insurance company before claims Tribunal at Exh.14. Claims Tribunal has referred to written statement filed by insurance company at page 15 of impugned award. Therefore, written statement of appellant insurance company Exh. 14 as considered by claims Tribunal at page 15 of impugned award is reproduced as under: “The opponent No. 5 namely The Oriental Insurance Co. Ltd. has filed its written statement at Exh. 14 contending inter alia that the claim or any part thereof is not admitted. It is also contended that unless specifically admitted in this written statement, this opponent denies each and every averment made in the claim petition. It is denied that this opponent is insurer of MV No. GRY 5566 and therefore, this opponent is not liable for the claim. It is submitted that this opponent is not liable for the said claim as said vehicle did not hold any permit to carry passengers for hire or reward on the date of contract of insurance. This opponent has denied the age and income of the deceased. It is denied that deceased were traveling as owners of goods. It is submitted that the accident has occurred due to rash and negligent driving of ST Driver. All averments of applicants regarding occupation, income etc. are denied. Ultimately, it is submitted that claims of applicants be dismissed against this opponent with costs.” 8. On the basis of pleadings, issues are framed by claims Tribunal which are referred to in para 4 of impugned award at page 15, which are quoted as under: “1. Whether the applicants prove that death of deceased Dosajibhai Manjibhai Patel (Petition No. 217/90), deceased Jalambhai Parthibhai Bhatol (Petition No. 365/90, deceased Patel Daljibhai Parthibhai (Petition No. 445/90) and deceased Revabhai Odharbhai (Petition No. 446/90) was caused and applicants of remaining petitions sustained injuries due to rash and negligent driving of offending vehicles bearing registration No. GJ.01.T.9008 and GRT.5566 by their respective drivers? 2. What amount of compensation is awardable to the applicants in cash claim petition? 3. Which of the opponents are liable and to what extent in each claim petition? 4. What order? 5. 2. What amount of compensation is awardable to the applicants in cash claim petition? 3. Which of the opponents are liable and to what extent in each claim petition? 4. What order? 5. My answers to the above issues are as under: 1. As per findings. 2. (1) MACP No. 217/90 Rs. 433000/- (2) MACP No. 206/90 Rs. 34253/- (3) MACP No. 356/90 Rs. 4000/- (4) MACP No. 358/90 Rs. 4000/- (5) MACP No. 359/90 Rs. 9258/- (6) MACP No. 365/90 Rs. 413800/- (7) MACP No. 372/90 Rs. 4000/- (8) MACP No. 445/90 Rs. 370600/- (9) MACP No. 446/90 Rs. 3,92,200/- (10) MACP No. 452/90 Rs. 4000/- (11) MACP No. 471/90 Rs. 48284/- (12) MACP No. 488/90 Rs. 4000/-” 9. Question of liability has been decided by claims Tribunal at page 66 of impugned award and relevant discussion in respect of submissions made by learned Advocate Mr.Tanvar is starting from page 68. Therefore, relevant part of the discussion on question of liability from page 66 to 69 is reproduced as under: “So far liability of opponents is concerned, the learned Advocate Mr. JC Madhu appearing for applicants has contended in his written arguments that insurance company is liable for passengers travelling in a goods vehicle along with their goods and the applicants (who are inmates of offending tempo) were travelling in the offending tempo with their goods and, therefore, the insurance company would be liable for the claim of the claimants. In support of his arguments, he has cited a decision of the Hon’ble Supreme Court in the case between National Insurance Co. Ltd. vs. Cholleti Bharatamma and Others, reported in 2008 ACJ 268 . The head Note reads as under: “Motor Vehicles Act, 1988, Section 147(1) — Motor insurance — Goods vehicle “Gratuitous passenger — Passenger risk — Passengers travelling along with their goods — liability of insurance company — Whether insurance company is liable for the death of or injuries sustained by passengers traveling in goods vehicle gratuitously — Held, no; and whether insurance company is liable for the passengers traveling in a goods vehicle along with their goods – Held,: yes.” Thus as per the above judgment of the Hon’ble Supreme Court, the insurance company is liable for the passengers traveling in a goods vehicle with their goods. The learned Advocate Mr. AM Desai for the applicants has submitted in his written arguments at Exh. The learned Advocate Mr. AM Desai for the applicants has submitted in his written arguments at Exh. 289 that if the Tribunal comes to the conclusion that both the drivers are contributory negligent in that event it is contended that the applicants and heirs of deceased are third parties and therefore they are entitled to recover compensation from all or any of the joint tort feasors. In support of his contentions, he has cited the judgment of Hon’ble High Court of Gujarat in case of Shardaben Nitinrai & Anr. vs. Gujarat State Road Transport Corporation, Ahmedabad & Ors., reported in 1981 GLH Vol. XXII Page 1258. The Head Note reads as under: Tort of negligence — Contributory negligence — Right of third party not affected — such party can claim compensation from either or both of them — Compensation of such third party cannot be sliced down on ground that one of the tortfeasor being owner of the vehicle happened to be passenger — As rickshaw driver not guilty of contributory negligence even his widow and minor daughter entitled to full compensation.” The learned Advocate Mr. A.M. Desai appearing for the applicants has also cited a judgment in the case of TO Anthony (Supra) wherein it is decided by the Hon’ble Supreme Court that ‘the injured has choice of proceeding against all or any of them’ The learned Advocate Mr. B.K Acharya for the ST Corporation has contended in his written arguments at Exh. 292 that driver has been deleted in all the above claim petitions and therefore all the petitions are prima facie liable to be dismissed. In support of his contention he cited the decision of the Hon’ble Supreme Court reported in 2007 ACJ 1284 .In that case, on the point whether the driver is a necessary party in a claim under Section 166, the Hon’ble Supreme Court has held -’yes’. I have no quarrel with the decision of the Hon’ble Supreme Court and am also bound to follow the same. However, as per the facts of the cited case there was controversy whether the driver was driving the vehicle or the deceased and, therefore, it was decided that Tribunal ought to have insisted that driver be impleaded because the question (controversy ) could not be decided in the absence of the driver who is primarily liable for the compensation. However, as per the facts of the cited case there was controversy whether the driver was driving the vehicle or the deceased and, therefore, it was decided that Tribunal ought to have insisted that driver be impleaded because the question (controversy ) could not be decided in the absence of the driver who is primarily liable for the compensation. In the present case there is no such controversy and therefore, the ratio laid down in the cited case cannot be made applicable to the present case. The learned Advocate appearing for the insurance company Mr. B.A. Tunvar has vehemently argued that it is not proved that deceased and/or other applicants were sitting in the offending Tempo as owners of the goods. The offending tempo is a goods vehicle and the deceased and/or injured were carried in the vehicle as passengers and, therefore, insurance company cannot be saddled with any liability. In support of his contention, he has cited the decision of Hon’ble Gujarat High Court reported in 2000 (O) GLHEL 210838 and a decision of the Hon’ble Supreme Court reported in 2002(O) GLHEL-SC 19625. It is to be noted that the Hon’ble Supreme Court has decided in the case of National Insurance Co. Ltd. (Supra) that insurance company is liable for palssengers travelling in a goods vehicle along with their goods. In the present case, the heirs and legal representatives of deceased victims and injured applicants have stated in their evidence or in their affidavit that the deceased and injured applicants were sitting in the offending Tempo (Goods Vehicle) with their goods and therefore, there is no reason to disbelieve the say of applicants or heirs of deceased before the Court or on solemn affirmation in their affidavits. Therefore, I do not accept the contention of learned Advocate appearing for the insurance company in view of above evidence and in view of the decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. (Supra) which is latest in point of time.” 10. Therefore, I do not accept the contention of learned Advocate appearing for the insurance company in view of above evidence and in view of the decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. (Supra) which is latest in point of time.” 10. As regards liability between insurance company and GSRTC, claims Tribunal discussed this aspect and observed as under at page 69 and 70 of award: “It is to be noted that it is proved on record of the case that deceased victim (claim petition No. 271/90), deceased victim (Claim Petition No. 365/90), deceased victim (claim petition No. 445/90), deceased victim (Claim Petition No. 446/90), and injured applicants of Claim Petitions No. 471/90 and 488/90 were traveling in offending tempo with their goods/whetstones. The injured applicants of Claim Petition No. 452/90 was travelling in the offending tempo as a labourer and other injured applicants of Claim Petition No. 356/90, 358/90, 372/90 were travelling as paid passengers. It is to be noted that it is settled legal position that all persons, other than driver, insured and insurer, are third parties. Even if it is presumed for the sake of argument that there is breach of condition, the insurance company is liable to pay compensation so far as third parties are concerned and may recover the amount so paid from the insured. Moreover, as per the decision of Hon’ble Supreme Court in the case of TO Anthony (Supra) ‘where a person is injured as a result of negligence of two or more wrongdoers — Each wrongdoer is jointly and severally to the injured for payment of entire damages and the injured has choice of proceeding against all or any of them.’ In view of the facts and circumstances of the case and the ratio laid down by the Hon’ble Supreme Court in the above judgment, I hold all the opponents (i.e. Owner of the offending ST Bus and owner and insurer of the offending Tempo) jointly and severally liable for the claim of claimants of all above Claim Petitions (i.e. Except the claim petitions of driver of the offending ST Bus and the driver of the offending Tempo). So far as driver of the offending Tempo —Ramanbhai Mohanbhai Solanki applicant of Claim Petition No. 206/90 is concerned, as per the decision of Hon’ble Supreme Court in the case of TO Anthony (Supra) the amount of compensation payable to him is reduced in proportion of his contributory negligence i.e. To the extent of 30 per cent and the owner of ST Bus i.e. Opponent No. 1 is only held liable.” 11. It is necessary to note one important aspect that 30 per cent negligence of driver of tempo has been decided by claims tribunal, therefore, liability of insurance company is coming to only 30 per cent but jointly and severally liability has been imposed by claims Tribunal and, therefore, appellant has challenged total amount awarded by claims tribunal. If the amount which has been awarded by claims Tribunal in respect of four cases is considered, then, 30 per cent comes to Rs. 1,20,000.00 and in one case, it comes to Rs. 15000.00. So, in case if total amount is required to be paid by insurance company considering joint and several liability imposed by claims tribunal, then, naturally, insurance company is entitled thereafter to recover rest of the amount from GSRTC with interest and proportionate costs as awarded by claims tribunal. It is also required to be noted that insurance company has challenged amount of compensation awarded by claims Tribunal in respect of each appeal but has not challenged interest awarded by claims Tribunal because there is no averment to that effect in memo of appeal as regards award of interest made by claims tribunal. 12. Now, in light of this back ground, I have considered contention raised by learned Advocate Ms. Megha Jani that claims Tribunal has committed gross error in deciding issue about liability properly and not considered amended provisions of Section 147 having effect from 14.11.1994 and also not considered decision of Apex Court in case of Asha Rani (Supra). While considering said contention, I have perused impugned award. I have also considered submissions made by learned Advocate Mr. Tunvar appearing before claims Tribunal on behalf of appellant insurance company and from perusal of his submissions, except the contention that insurance company is not liable for passengers travelling in goods vehicle, there is no other submission made by learned Advocate Mr. I have also considered submissions made by learned Advocate Mr. Tunvar appearing before claims Tribunal on behalf of appellant insurance company and from perusal of his submissions, except the contention that insurance company is not liable for passengers travelling in goods vehicle, there is no other submission made by learned Advocate Mr. Tunvar that because of amended Section 147, insurance company is not liable to pay compensation to claimants as accident took place prior to accident. On 07.07.2008, written submissions were filed by insurance company which were taken on record by claims Tribunal but question is whether those written submissions tendered by insurance company before claims Tribunal were thereafter pressed into service by advocate Mr. Tanvar or not. From discussion made by claims Tribunal in impugned award, it appears that before claims tribunal, question of law was, in detail, argued by learned Advocate appearing for insurance company but from that submissions or arguments made by learned Advocate for insurance company Mr. Tunvar, it does not appear that any such submission was made that insurance company is not liable because of amended provisions of Section 147 of MV Act, 1988 and, therefore, according to my opinion, looking to impugned award as it is and also considering written submissions as well as written statement, if it has not been pressed into service before claims Tribunal and if decision has not been invited on issue, then, naturally, claims Tribunal cannot examine such issue which was not pressed into service before it by insurance company. It is also necessary to note that at the time of framing issues, advocate for insurance company ought to have brought to notice of claims Tribunal to frame issue on question, whether insurance company is liable to pay compensation in light of amended provisions of Section 147 of MV Act, 1988 or not. After framing of issues by claims tribunal, no such prayer was made by insurance company’s advocate before claims Tribunal and no such issue was framed by claims Tribunal because no such submission was made by advocate for insurance company before claims tribunal. Otherwise, after framing of issues by claims tribunal, it is duty of advocate for insurance company to request claims Tribunal to frame issue in respect of liability of insurance company in light of amended provisions of Section 147 of MV Act, 1988. Otherwise, after framing of issues by claims tribunal, it is duty of advocate for insurance company to request claims Tribunal to frame issue in respect of liability of insurance company in light of amended provisions of Section 147 of MV Act, 1988. So, in common award, no such contention on behalf of insurance company is finding place in respect of liability of insurance company after amendment in Section 147 of MV Act, 1988, therefore, according to my opinion, if such contention is not finding place in impugned award, then, presumption is that no such contention is raised by insurance company before insurance company and claims Tribunal has rightly not examined such issue in award. If insurance company was having feeling that such contention though raised by it has not been considered by claims Tribunal in award, then, option was available and it was having remedy to approach claims Tribunal by filing necessary application inviting attention of claims Tribunal that such contention, though raised and pressed into service, not decided by claims tribunal. Claims Tribunal is having power to consider such application if it is made by party having such grievance and then to pass appropriate orders, therefore, according to my opinion, contention which was not raised before claims Tribunal and not pressed into service by insurance company’s advocate was rightly not examined by claims Tribunal and in doing so, claims Tribunal has not committed any lapse or error requiring interference of this Court. 13. This Court had an occasion to consider same contention and question which has been raised by learned Advocate Ms. Megha Jani in these appeals.Similarly question is examined by this Court while deciding First Appeal No. 548 to 552 of 2009 on 13.02.2009. This Court considered all relevant decisions in respect of contention raised by learned Advocate for insurance company. This Court considered decision of Hon’ble Apex Court in case of (1) Smt. Mallawwa etc. vs. The Oriental Insurance Co. Ltd. & Others, reported in JT 1998 (8) SC 217; (2) National Insurance Co. Ltd. vs. Ajit Kumar and Others, reported in AIR 2003 SC 3093 ; (3) Oriental Insurance Company Ltd. vs. Devireddy Konda Reddy & Others etc. etc., reported in 2003 (1) Scale 1441; (4) New India Assurance Co. Ltd. vs. C.M. Jaya & Others, reported in 2002 (1) Supreme 170 . Thereafter, this Court examined similar question in detail. Ltd. vs. Ajit Kumar and Others, reported in AIR 2003 SC 3093 ; (3) Oriental Insurance Company Ltd. vs. Devireddy Konda Reddy & Others etc. etc., reported in 2003 (1) Scale 1441; (4) New India Assurance Co. Ltd. vs. C.M. Jaya & Others, reported in 2002 (1) Supreme 170 . Thereafter, this Court examined similar question in detail. Therefore, relevant observations made by this Court while deciding First Appeal No. 548/09 to 552/09 on 13.2.2009 in Paras 7 to 15 are quoted as under: “7. I have considered the contentions raised by learned Advocate Mr. Vibhuti Nanavati and also considered submissions made by learned Advocate Mr. Paresh Darji appearing on behalf of respondent. I have also perused award passed by Claims Tribunal. Facts of this case are that accident occurred on 11/9/1990 with passengers who were travelling in matador bearing No. GTS-921 along with their goods. At that time one truck No. GTF 3072 was lying in stationary condition on road. Therefore, matador dashed with truck and accident took place and therefore petitions have been filed for getting compensation by claimants. Written statement filed by Insurance Company before Claims Tribunal. Opponent No. 1 and 2 are driver and owner of truck but they have not joined Insurance Company of truck in question. The Claims Tribunal has dismissed claim petition against Respondent Nos. 1 and 2, driver and owner of truck vide order dated 01.05.1990. The driver/owner of matador bearing No. GTS 9216 died in accident and heirs of deceased owner are joined as opponent No. 4 in petition. Opponent No. 3-insurance company of matador has filed written statement and he denied that accident occurred due to negligent driving of driver of matador. According to insurance company-present appellant, driver of truck is contributed negligence and driver of matador is not responsible for accident. Thereafter, issues have been framed by Claims Tribunal after considering written statement filed vide Exh.-11. The Claims Tribunal has considered various decisions relied by both sides and also submissions made by learned Advocate Mr. R.R. Panchal appearing on behalf of insurance company in written arguments, Exh.-96. Para-18 of the order of the Claims Tribunal which covers contention which has been raised by insurance company before Claims Tribunal. The said para is quoted as under: 18. Shri R.R. Panchal, learned Advocate for the company has submitted his written arguments ex.96 denying the claim and contents of the petitions. Para-18 of the order of the Claims Tribunal which covers contention which has been raised by insurance company before Claims Tribunal. The said para is quoted as under: 18. Shri R.R. Panchal, learned Advocate for the company has submitted his written arguments ex.96 denying the claim and contents of the petitions. It is stated that in the present matters, there are two vehicles involved in the accident. The truck was parked o n the road, without keeping back side lights and reflectors on. The panchnama shows that there was no back side light, and no signs were put for parking the truck. The panchnama shows that the road is 30 ft. in width. It is therefore clear that the truck was parked leaving 10 ft. from left side and in the middle of the road. It is therefore stated that the truck driver is solely liable for the accident and prayed to dismiss the claim petitions against opponent No. 3. It is further argued that as per the claim petitions, they have started for “Yatra”. However, in the affidavits of the applicants, they are stating that they were sitting along with their goods. Thus, there is a contradiction between the facts of claim petition and facts of affidavit in chief. The applicants have not proved their journey with goods by documentary evidence. The applicants have not stated the name of goods also. It is further stated that as all the persons traveling in the matador being gratuitous passengers, and therefore the company is not liable to pay compensation to the applicants. In support of his arguments, the learned Advocate for the Company has placed reliance on the following decisions: 1. 2005 ACJ 1801 - M.V. Jayadevappa and Another vs. Oriental Fire & Genl. Ins. Co. Ltd. and Others. 2. 1999 ACJ 1 - Mallawwa and Others vs. Oriental Insurance Co. Ltd. and Others. 3. 2001 ACJ 1490 - New India Assurance Co. Ltd. vs. Bhagwanbhai Danabhai and Another. 4. 2001 ACJ 1565 - Ramesh Kumar vs. National Insurance Co. Ltd. and Others. 5. 2003 Supreme Court 1009 - Oriental Insurance Co. Ltd. vs. Devireddy Konda Reddy and Others. 6. 2005 ACJ 721 - National Insurance Co. Ltd. vs. Bommithi Subbayamma and Others. 3. 2001 ACJ 1490 - New India Assurance Co. Ltd. vs. Bhagwanbhai Danabhai and Another. 4. 2001 ACJ 1565 - Ramesh Kumar vs. National Insurance Co. Ltd. and Others. 5. 2003 Supreme Court 1009 - Oriental Insurance Co. Ltd. vs. Devireddy Konda Reddy and Others. 6. 2005 ACJ 721 - National Insurance Co. Ltd. vs. Bommithi Subbayamma and Others. All the above mentioned citations are regarding the liability of insurance company in respect of gratuitous passengers but all the cited cases are not helpful to the company in view of the ratio laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. vs. Chholleti Bharatamma and Others reported in 2008 ACJ 268 . It is laid down by Superior Court and also it being subsequent and the latest in point of time.” Meaning thereby after referring aforesaid para, except that insurance company has not raised any other contention before Claims Tribunal. 8. Thereafter Claims Tribunal has examined evidence of claimants on record, Ganeshbhai Devjibhai Chhara at Exh.-72, Rasilaben Dilipbhai Chhara at Exh.-50, and Pintubhai @ Dharmeshbhai Ranjeetbhai Chhara at Exh.48, 49 and thereafter considering the submissions made by learned Advocate on behalf of claimants and deposition of Kamleshbhai Naranbhai Prajapati at Exh.71 recorded in MACP No. 208 of 1991 on 02.04.1997 and came to conclusion that accident occurred due to sole negligence of matador driver. The Claims Tribunal has come to conclusion that truck driver is not contributorily negligent and accident was within sole control of matador driver and he solely liable for accident on basis of evidence on record. Thereafter quantum has been decided in para-28 onwards by the Claims Tribunal. The Claims Tribunal has come to conclusion that all persons who died were travelling as owner of goods taken in matador. From Sarkhej, about eight persons with their goods in matador are there and Rs. 250/- fare was fixed for all them to reach Bhavnagar and that is how Claims Tribunal has come to conclusion that persons those who have been travelling at time of accident they were not gratuitous passengers but they were travelling along with their goods. Say of claimants being on oath , there is no reason to disbelieve same and as against same, insurance company has raised contention about gratuitous passengers, but failed to produce any contrary evidence and not examined any witnesses to disprove case of applicants. Say of claimants being on oath , there is no reason to disbelieve same and as against same, insurance company has raised contention about gratuitous passengers, but failed to produce any contrary evidence and not examined any witnesses to disprove case of applicants. The observation made in Para 26 and 27 of judgment and order are quoted as under: “26. Moreover, at this stage, it would be just and proper to refer the deposition of Kamleshbhai Narayanbhai Prajapati produced at ex.71. He has stated that he was a labourer of the matador. He has stated from Sarkhej, they had taken abut 8 persons with their goods in the truck, and their fare was fixed at Rs. 250/- for all to reach at Bhavnagar. Thus, it is clear that the deceased and the injured were cannot be termed as gratuitous passengers. 27. Considering the evidence as a whole and the arguments of both the sides, it is clear that the deceased and the injured were not gratuitous passengers, but they were traveling along with their goods. The say of the applicants being on oath there is no reason to disbelieve the same. As against this the opponent Company has raised the contention of gratuitous passengers, but failed to produce any contrary evidence, and not examined any witness to disprove the case of the applicants. Thus, the arguments advanced by the learned Advocate for the Company that the deceased and the injured were gratuitous passengers, cannot be accepted. As the deceased and injured were traveling with their goods, the Company is liable to pay compensation to the applicants. Hence, issue No. 1 for all the petitions, is decided accordingly. 9. In light of aforesaid discussion and finding given by Claims Tribunal, the question is that accident occurred on 11.09.1990 undisputedly before amendment made in Section 147. The simple contention raised by insurance company that person those who were travelling in matador they were gratuitous passengers and the insurance company is not liable for payment of compensation. According to insurance company, accident occurred before amendment, therefore, in any capacity any person is not permitted to travel in goods vehicle because their risk is not covered under Section 147 of the Motor Vehicles Act as well as insured owner has not paid any additional premium covering risk of such person before insurance company. Therefore, company is not liable to pay compensation. Therefore, company is not liable to pay compensation. The contention in respect to owner who himself driving matador died in accident, therefore, insurance company is not supposed to prove by leading evidence of any other person except owner who was died in accident. In light of this, first aspect is to be considered by this Court that before the Claims Tribunal, nowhere insurance company has raised contention that accident occurred prior to amendment. This fact has not been brought to notice of Claims Tribunal. It is necessary for insurance company to brought on record real facts for notice of Claims Tribunal that accident is occurred prior to amendment and that is how risk of passengers are not covered. 10. I have perused the entire award and going through entire award, I am not able to find such contention raised by insurance company that accident occurred on 11.09.1990 i.e. before amendment made in Section 147 of Motor Vehicles Act. Therefore, insurance company is not liable. Therefore, whole matter remained as it is between insurance company and claimants to decide whether passengers were travelling as a owner of goods or not but neither lawyer of insurance company or Claims Tribunal examined real question that accident is occurred prior to amendment of Section 147. Therefore, this very important question not raised by insurance company before Claims Tribunal therefore that question remained without examination by Claims Tribunal and merely matter remained to examine whether persons travelling in matador are owner of goods or not. These facts are totally irrelevant if main contention has not been raised by insurance company, therefore, according to my opinion, insurance company has failed to raise proper question before Claims Tribunal that accident is occurred before amendment made in Section 147 on 14.11.1994. That aspect remained as it is for examination by Claims Tribunal and for that according to my opinion, Tribunal has not committed any error in deciding question which has been raised by the insurance company before Claims Tribunal. The Claims Tribunal has decided the factual controversy raised by parties. The claimants’ case was they were travelling as owner of goods on date of accident. This fact denied by Insurance Company. Except that there is no other point raised by Insurance Company before Claims Tribunal. The Claims Tribunal has decided the factual controversy raised by parties. The claimants’ case was they were travelling as owner of goods on date of accident. This fact denied by Insurance Company. Except that there is no other point raised by Insurance Company before Claims Tribunal. Therefore, Claims Tribunal relying upon evidence produced and led by claimants, come to conclusion that at the time of accident persons were travelling as owner of goods. The burden upon company to disprove said facts by leading rebuttal evidence but no evidence led by company for disproving facts. So burden is not discharged by company. So view taken by Claims Tribunal based on facts cannot be vitiated as baseless and perverse. In such circumstances view taken by this Court in case of National Insurance Company Ltd. vs. Lakhuben Punabhai Vaghri and Others, reported in 2006 (2) GLH 468. Revevant paras i.e. Para Nos. 6 and 7 are quoted as under: “6. It is now settled by a catena of decisions of the Supreme Court that all defences are to be proved by the insurer like the appellant. In the face of this specific averment in the claim petitions that the persons were travelling alongwith their goods, the onus to disprove this averment rests upon the appellant Insurance Co. Had the appellant - Insurance Company discharged this onus, it would have gone a long way in proving whether, or not, the deceased persons were gratuitous passengers. Unfortunately, it has failed to do so and has not even brought the driver of the offending truck into the witness box. The burden to prove the breach of a term of contract rests squarely on the party which complains of such breach. The test which can be applied in such a situation would be that which party would fail if no evidence is led or the onus is not discharged. In the present case, the answer would be the appellant-Insurance Company. In this behalf, reference can be made to 1985 ACJ 397 (Narcinva V. Kamat vs. Alfredo Antonio Doe Martins) and 2004 ACJ 1 (National Insurance Co.Ltd. vs. Swaran Singh). In National Insurance Co. Ltd. vs. Swaran Singh (Supra) the Supreme Court has observed as under: “62. the proposition of law is no longer res integra that the person who alleges breach must prove the same. In National Insurance Co. Ltd. vs. Swaran Singh (Supra) the Supreme Court has observed as under: “62. the proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi, 1996 ACJ 1044 (SC).” “102 ((i)********** (ii) ************** (iii)************** (iv)The Insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish ‘breach’ on the part of the owner of the vehicle, the burden of proof wherefor would be on them. (v)The Court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.” 7. Applying the ratio of the law laid down by the Supreme Court, as referred to above, it is evident that the appellant, in the present case has failed to lead any evidence in order to prove that the deceased persons were gratuitous passengers who were travelling in an unauthorised manner in the truck and without any goods. The specific averment in the claim petition that the deceased persons were travelling in the truck alongwith their goods has not been dislodged during the entire proceedings before the M.A.C.Tribunal and in the absence of any evidence or material on record to the contrary, it has rightly been relied upon by the M.A.C. Tribunal to come to the conclusion that the deceased persons were travelling in the truck alongwith their goods and, as such they were not gratuitous passengers. Having failed to discharge the burden of proof in support of this contention, it is not open to the appellant at this stage to try and bring about a re-appraisal of the evidence on facts. There is no reason for this Court to go into the factual aspect of the matter or enter into a re-appraisal of evidence since the impugned judgment and award does not suffer from any illegality or perversity.” 11. The decision which has been relied upon by learned Advocate Mr. There is no reason for this Court to go into the factual aspect of the matter or enter into a re-appraisal of evidence since the impugned judgment and award does not suffer from any illegality or perversity.” 11. The decision which has been relied upon by learned Advocate Mr. Vibhuti Nanavati, referred above for principle, there is no difference of opinion in respect to ratio laid down by Hon’ble Apex Court in each case but question is whether important question is raised by insurance company before Claims Tribunal, if it is not raised than there is no need by Claims Tribunal to examine it, therefore, according to my opinion, Claims Tribunal has rightly decided matter considering fact that amended Section 147 is made applicable to present accident. It is also necessary to consider one more important aspect which has not been raised by insurance company and Claims Tribunal has also not decided. The question is whether matador is passenger vehicle or goods vehicle. This question is remained open as not examined by Claims Tribunal. If contention is not raised by insurance company before Claims Tribunal in respect to amended Section 147 and Claims Tribunal has not examined it than it should not be case of advocate of insurance company that such contention was raised and not decided by Claims Tribunal. Duty of Court is to examine contention which is to be raised by party before Court. If a party has not raised particular contention, than Court should not have to bother to decide such a contention without raising by either side. Therefore, Claims Tribunal has rightly considered matter as it is and examine it whether on date of accident persons those who were travelling in matador are owner of goods or not. For that evidence of claimants was accepted by Claims Tribunal that they were travelling as owner of goods and against that no evidence is led by insurance company before Claims Tribunal, therefore, accepting evidence of claimants, according to my opinion, the Tribunal has rightly come to the conclusion that at the time of accident, persons those who were travelling in matador were owner of goods. Therefore, Claims Tribunal has held insurance company liable to pay compensation to claimants. Therefore, Claims Tribunal has held insurance company liable to pay compensation to claimants. The Claims Tribunal has misunderstood terms and conditions of policy will have no adverse effect because Claims Tribunal has considered fact that if any person is travelling in matador as owner of goods than insurance company is liable to pay compensation. On that presumption, entire award has been passed. That presumption of Claims Tribunal remained as it is because contrary to that, no contention raised by insurance company before Claims Tribunal to effect that looking to date of accident, prior to amendment question of travelling by any person as owner with goods or without owner of goods makes no difference. Therefore in such circumstances, no error can be found from Claims Tribunal where such question not raised by the insurance company before Tribunal to avoid liability of compensation to claimants. Therefore, question of equity in such circumstances does not arises because matter has been decided by Court in accordance with law. learned Advocate Mr. Vibhuti Nanavati relied on decision of Hon’ble Apex Court, reported in AIR 2008 SC 171 (Supra), Para-21 which has been referred by this Court where Court should not have to exercise the jurisdiction of equity contrary to law. In this case, there is no question of exercising the power in respect of equity because law suggest or a bias obligation upon party to raise all question before Tribunal. If insurance company remained silent than there is no challenge before Claims Tribunal to decide matter on basis of evidence on record. Therefore, in this case Tribunal has decided the matter according to law and if contention is not raised which is available to insurance company to be raised than, Claims Tribunal is not duty bound to decide matter in respect to question which is not raised by party before Claims Tribunal. The party should have brought to notice of Court a relevant provisions of law for deciding matter according to law but if party has failed to do so, than the blame cannot be made against Claims Tribunal that Claims Tribunal has not considered amended and not amended Section 147 of the Act. Therefore, decision of Hon’ble Apex Court is not applicable to facts and circumstances of this case because exercising jurisdiction on equity does not arise here. Therefore, decision of Hon’ble Apex Court is not applicable to facts and circumstances of this case because exercising jurisdiction on equity does not arise here. It is also necessary to note one important aspect that if contention not raised than the Tribunal cannot examine it and if it is not found placed in the award, naturally such contention is not raised by insurance company before Claims Tribunal. The view taken by Hon’ble Apex Court that duty of Court to decide matter on basis of contentions raised by parties and the Court cannot go beyond contentions raised by parties. This aspect has been considered by Apex Court in case of Jagvirsingh & Ors. vs. State (Delhi Admn.) reported in 2007 (5) Supreme 214 . Relevant discussion made by Apex Court in Para 4 of said decision is reproduced as under: 8. “4. If really there was no concession, the only course open to the appellants was to move the High Court in line with what has been said in State of Maharashtra vs. Ramdas Shrinivas Nayak and Anr. ( 1982 (2) SCC 463 ). In Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. and Ors. (2002 AIR SCW 4939, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party while the matter is still fresh in the minds of the Judges, to call the attention of the very Judge who has made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellants to contend before this Court to the contrary.” 12. Similarly, recently also, this aspect has been examined by Apex Court in case of Mohd. Akram Ansari vs. Chief Election Officer & Ors., reported in 2008 AIR SCW 416. Para 14 of said decision is reproduced as under: “14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. Akram Ansari vs. Chief Election Officer & Ors., reported in 2008 AIR SCW 416. Para 14 of said decision is reproduced as under: “14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.” 13. Recently also, Apex Court has delivered judgment on 21.11.2008 in case of Md. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.” 13. Recently also, Apex Court has delivered judgment on 21.11.2008 in case of Md. Rafique @ Chachu vs. State of West Bengal reported in 2008 (15) Scale page 15 wherein it was observed by Apex Court that “if a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary.” Relevant discussion made in Para 5 of said decision is reproduced as under: “5. It would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so, it is not open to the appellant to turn around or to take a plea that no concession was given. This is clearly a case of sitting on the fence and it is not to be encouraged. If really three was no concession,the only course open to the appellant was to move the High Court in line with what has said in State of Maharashtra vs. Ramdas Shrinivas Nayak ( 1982 (2) SCC 463 ). In a decision Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. ( 2003 (2) SCC 111 ) the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. if a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. if a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. The above position was highlighted in Roop Kumar vs. Mohan Thedani ( 2003 6 SCC 595 ).” 14. The Hon’ble Apex Court in the case of Ex. Constable Ramvir Singh vs. Union of India, reported in 2009 AIR SCW 163 also, in Para Nos. 9 and 10, observed as under: “9. The question as to whether he was discriminated against vis-a-viz the afore-mentioned Kalipada Mandal having not been raised by him before the High Court, we are of the opinion that it is not possible for us to consider the said contention which has been raised for the first time. Mr. Pandey submitted that such a contention had been raised in the Writ Petition. It might have been raised but it does not appear from the impugned judgment that the same was pressed before the High Court. This Court is bound by the Judge’s record. If the High Court, as contended by Mr. Pandey, despite raising a contention in that behalf did not deal therewith, the only remedy available to him was to move the High Court drawing its attention thereto. Apart from the fact that the said procedure was not adopted by appellant, even before us, neither the counsel appearing in the High Court nor the appellant, affirmed any affidavit that such a contention, in fact, had been raised before the High Court. It is, therefore, not possible for us to accept that the contention as regards the discrimination against the appellant viz-a-viz the said Kalipada Mandal was raised. 10. In State of Maharashtra vs. Ramdas Shrinivas Nayak, [(1982) 2 SCC 462], this Court held: “4. It is, therefore, not possible for us to accept that the contention as regards the discrimination against the appellant viz-a-viz the said Kalipada Mandal was raised. 10. In State of Maharashtra vs. Ramdas Shrinivas Nayak, [(1982) 2 SCC 462], this Court held: “4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. ‘Judgments cannot be treated as mere counters in the game of litigation.’ (Per Lord Atkinson in Somasundaram Chetty vs. Subramanian Chetty.) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact tat the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chodhri vs. Chandrabhai Chowdhrain.) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.” [See also Bhavnagar University vs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 and Dhandabhai Khalasi vs. State of Gujarat, (2007) 4 SCC 241 ].” 15. In view of observations made by Hon’ble Apex Court, according to my opinion, Claims Tribunal has rightly examined the matter in respect to contention raised before it. For that, Claims Tribunal has not committed any error in deciding the claim petitions filed by claimants. The Insurance Company cannot expect from Tribunal to find out contention by Claims Tribunal in their favour while deciding the petitions filed by claimants. The Claims Tribunal has been constituted neither for help of insurance company or claimant but it is a beneficiary legislation to decide case under legislation and than to find out equity in favour of claimants. For that Claims Tribunal has not committed any error which requires interference of this Court. After considering law which has been discussed by this Court raised by learned Advocate Mr. Vibhuti Nanavati, according to my opinion, on basis of facts, Claims Tribunal has rightly examined matter and not committed any error which requires interference of this Court. Therefore, the appeals filed by Insurance Company are having no substances, require to be dismissed. Hence all above appeals are dismissed.” 14. Considering aforesaid observations made by this Court while deciding First Appeal Nos. 548 to 552 of 2009 on 13.2.2009, and also considering reasoning given by this Court in said group of appeals in light of facts of this case, according to my opinion, contentions raised by learned Advocate Ms. Jani for appellant insurance company cannot be accepted and therefore, same are rejected. 15. At this stage, learned Advocate Ms. Jani for appellant insurance company also raised further contention that according to claimants, they were travelling as owner of goods but according to insurance company, they were not travelling as owner of goods. Jani for appellant insurance company cannot be accepted and therefore, same are rejected. 15. At this stage, learned Advocate Ms. Jani for appellant insurance company also raised further contention that according to claimants, they were travelling as owner of goods but according to insurance company, they were not travelling as owner of goods. She also submitted that claims Tribunal has committed an error in coming to conclusion that victims were travelling as owner of the goods meaning thereby, claimants have not established facts by leading proper evidence before claims Tribunal that victims were travelling as owner of goods. Before claims tribunal, claimants were examined and according to claimants, in case of deceased, they were travelling as owner of the goods. Looking to averments made in claim petition, 6 persons boarded offending tempo with goods, three victims boarded as fare paid passengers and one victim was in offending tempo as labourer. Claims Tribunal has, on the basis of evidence on record and after considering submissions made by learned Advocate Mr. BA Tunvar has come to the conclusion that “In the present case, the heirs and legal representatives of deceased victims and injured applicants have stated in their evidence or in their affidavit that the deceased and injured applicants were sitting in the offending Tempo (Goods Vehicle) with their goods and therefore, there is no reason to disbelieve the say of applicants or heirs of deceased before the Court or on solemn affirmation in their affidavits. Therefore, I do not accept the contention of learned Advocate appearing for the insurance company in view of above evidence and in view of the decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. (Supra) which is latest in point of time.” 17. Aforesaid observations have been made and findings as aforesaid have been given by claims Tribunal after considering evidence on record produced from claimants side against which, on behalf of insurance company, no oral and/or documentary evidence was produced to prove facts or contentions raised by insurance company that deceased victims were not travelling as owner of goods. For resolving that factual controversy, evidence to the contrary was required to be produced by insurance company whichwas not done by insurance company. Law is that party who raises contention must have to prove such contention by leading proper evidence before claims tribunal. For resolving that factual controversy, evidence to the contrary was required to be produced by insurance company whichwas not done by insurance company. Law is that party who raises contention must have to prove such contention by leading proper evidence before claims tribunal. Here, in this case, there was some evidence produced by claimants and as against that, except mere contention, no evidence whatsoever was produced by insurance company. So, on behalf of insurance company, no evidence in rebuttal was produced as against evidence of claimants and, therefore, in absence of any evidence to the contrary, claims Tribunal has come to conclusion that deceased victims and injured were travelling as owner of goods. This question has also been considered by this Court in aforesaid group of First Appeal No. 548 to 552 of 2009 decided on 13.02.2009 wherein this Court has considered decision of Division Bench of this Court in case of National Insurance Company Ltd. vs. Lakhuben Punabhai Vaghri and Others, reported in 2006 (2) GLH 468. Relevant Para Nos. 6 and 7 thereof have also been considered by this Court earlier. Therefore, considering decision of this court, burden is on the insurance company to establish such breach by producing cogent evidence and insurance company has failed to discharge such burden and has failed to prove that there has been breach of terms and conditions of insurance policy and, therefore, insurance company cannot be absolved from its liability. As the insurance company has failed to discharge its burden to prove in respect of this contention, now, it is not open for insurance company at this stage to raise such contention before this Court on findings of fact and there is no reason for this Court to go into factual aspects of matter or enter into reappraisal of evidence since common award does not suffer from any illegality and/or prevercity and, therefore, subsequent contentions raised by learned Advocate Ms. Jani also cannot be accepted and same are also therefore rejected. 18. In view of the aforesaid reasons, there is no substance in this group of appeals and same are liable to be dismissed. Accordingly, these appeals are dismissed. 19. Today, this Court has dismissed first appeals, therefore, no orders are required to be passed in civil applications for stay. Therefore, aforesaid civil applications for stay are disposed of accordingly. 18. In view of the aforesaid reasons, there is no substance in this group of appeals and same are liable to be dismissed. Accordingly, these appeals are dismissed. 19. Today, this Court has dismissed first appeals, therefore, no orders are required to be passed in civil applications for stay. Therefore, aforesaid civil applications for stay are disposed of accordingly. Amount, if any, deposited by appellant in registry of this Court be transmitted to concerned claims Tribunal immediately.