Hon'ble RATHOD, J.—Heard learned advocate Mr. Sunil B. Parikh appearing on behalf of appellant - insurance company. 2. These all three appeals are arising from award passed by MACT, Surat in respect of accident occurred on 21st October 2006. In First Appeal No.4544 of 2009, award passed by Claims Tribunal, Surat in MACP No.122 of 2007 dated 17th January 2009 is challenged. In First Appeal No.4545 of 2009, award passed by Claims Tribunal, Surat in MACP No. 99 of 2006 dated 17th January 2009 is challenged. In First Appeal No.4546 of 2009, award passed by Claims Tribunal, Surat in MACP No. 700 of 2006 dated 17th January 2009 is challenged. The claims tribunal has awarded amount of compensation in favour of claimant with 9% interest. In all three appeals, one contention is raised by learned advocate Mr. Parikh in respect to question of liability of insurance company. 2. Learned advocate Mr. Parikh submitted that accident occurred on 21st October 2006 when deceased was travelling as passenger in Truck No.GJ-4-V-4041. He submitted that persons, those who were travelling in goods vehicle on the date of accident, were all unauthorised passengers. The risk of such persons are not required to be covered or as a matter of fact it was not covered in insurance policy. Therefore, claims tribunal ought not to have passed any award against appellant insurance company. He submitted that basic contention raised by appellant insurance company that risk of such persons are not covered those who were travelling in goods vehicle on the date of accident. He also submitted that accident is occurred after the amendment made in Motor Vehicle Act, 1994, therefore, amended Act, 1994 would be applicable because date of accident is 21st October 2006. He submitted that insurance company neither statutorily nor by the contract of insurance is required to cover the risk of person carried in goods vehicle be carried out in any other capacity. He submitted that deceased persons were travelling in goods vehicle without any goods, therefore, insurance company shall not be held liable. He also submitted that FIR and Panchnama are not properly appreciated by claims tribunal, because, nowhere, it is mentioned that persons those who were travelling at the relevant time of accident, they were travelling as owner of goods. He submitted that deceased persons were travelling in goods vehicle without any goods, therefore, insurance company shall not be held liable. He also submitted that FIR and Panchnama are not properly appreciated by claims tribunal, because, nowhere, it is mentioned that persons those who were travelling at the relevant time of accident, they were travelling as owner of goods. Therefore, according to him, at the time when accident occurred, 13 persons were also travelling in goods vehicle and their risk is not covered under insurance policy and therefore, award passed by claims tribunal holding liability of insurance company to pay compensation is contrary to law laid down by Apex Court. Therefore, learned advocate Mr. Parikh is relying upon three judgments which are quoted as under : (i) Cheekati Nageswar Rao vs. G. Raman Rao and another - 2006 ACJ 2248. (ii) National Insurance Co. Ltd. vs. Cholleti Bharatamma and others - 2008 ACJ 268 . (iii) National Insurance Co. Ltd. vs. Rattani and others - 2009 ACJ 925 . 3. Learned advocate Mr. Parikh also raised contention before this Court that definition of 'Goods Carriage' under Section 2(14) of MV Act read with definition of 'Goods' under Section 2(13) of MV Act is not properly appreciated by claims tribunal and in case if persons were travelling as owner of goods, then, personal luggage cannot consider to be the goods as per definition of 'Goods' given under provisions of MV Act. He also referred FIR filed by one Jayantibhai Mathurbhai dated 21st October 2006 and according to FIR, they were travelling in goods vehicle going towards Bhavnagar side having loaded by iron in truck No.GJ-4-V-4041 sitting on backside of truck upon iron rods which were lying in truck. After reading this FIR, he wants to emphasis that in FIR, it was not mentioned that they were travelling in goods vehicle on the date of accident as owner of goods. He also relied upon Panchnama, where, he also emphasised that in Panchnama, there is no indication or noting about goods which were carried by such passengers. Therefore, FIR and Panchanama are not properly appreciated by claims tribunal, therefore, claims tribunal has committed gross error in deciding claim petitions holding liable to appellant insurance company. He straightway relied upon paragraphs-16 and 17 of award where question of liability has been examined by claims tribunal. Therefore, FIR and Panchanama are not properly appreciated by claims tribunal, therefore, claims tribunal has committed gross error in deciding claim petitions holding liable to appellant insurance company. He straightway relied upon paragraphs-16 and 17 of award where question of liability has been examined by claims tribunal. Therefore, relevant paragraphs-16 to 18 are quoted as under : "16. On the point of liability, Shri K.M. Patel- the learned advocate for the insurance co. has contended that, the deceased was not travelling along with the goods, but he was travelling in the goods vehicle as illegal and / or gratuitous passenger, consequently therefore, no liability can be fastened upon the insurance co. for payment of compensation. 17. In order to appreciate the contention, on going through the petition as well as deposition in support of the claim petition, the claimant has categorically and clearly narrated that the deceased was travelling in the aforesaid goods vehicle along with goods, more particularly described in the petition. That fact has been challenged by Shri. Patel - learned advocate for the insurance co. in the cross examination of the deponent / claimant. But, no contrary evidence has been produced either to rebut the aforesaid pleading as well as the deposition of the claimant in support of the pleading nor any documentary evidence has been produced. Consequently therefore, what is revealing from the plaint, duly supported by the oral evidence in the nature claim affidavit of the claimant can be accepted no indication is revealing from the FIR and Panchnama also. Therefore, in absence of any contrary evidence, either in the nature of positi8ve evidence from the insurance co. or through the police papers, the evidence produced and adduced by the claimants can be believed, as such. Hence, the contention raised by Shri. Patel on behalf of insurance co. requires to be rejected, as such. 18. The RC Book with respect to the offending vehicle produced at Exh.52 shows that vehicle being Truck No. GJ 4 V 4041 was owned by opponent no.2. There is no doubt that the vehicle in question is involved in the accident, and on account of negligence on the part of driver of vehicle involved in the accident, which facts is apparent from the Panchnama of place of offense carried out during police investigation. On perusal of the insurance policy produced at Exh. There is no doubt that the vehicle in question is involved in the accident, and on account of negligence on the part of driver of vehicle involved in the accident, which facts is apparent from the Panchnama of place of offense carried out during police investigation. On perusal of the insurance policy produced at Exh. 51, it appears that the vehicle in question was insured in the name of opponent no.2 at the time of accident by Opponent NO.3 insurance co. covering the period of accident. Therefore, opponent No.3 is liable to indemnify the award that maybe passed against opponents. Therefore, the claimants are entitled to recover the above said compensation amount from all the opponents, jointly and severally." 4. Except that, learned advocate Mr. Parikh has not made any further submission before this Court challenging award in question. 5. I have considered submissions made by learned advocate Mr. Parikh and I have also considered relevant decisions which have been relied upon by learned advocate Mr. Parikh. I have also considered FIR and Panchnama which has been also shown to this Court by learned advocate Mr. Parikh. The question is that on the date of accident 21st October 2006, persons those who were travelling as passengers in truck No.GJ-4-V-4041 whether they were travelling along with goods as owner of goods or not ? This question is relating to factual aspect which must have to be established before claims tribunal that on date of accident, persons those who were travelling as passengers in goods vehicle as owner of goods or not ? Initial burden is upon claimant to prove this fact that persons were travelling as owner of goods. For that, avermetns made in claim petition by claimant that on 21st October 2006, deceased was travelling as passenger in truck No.GJ-4-V-4041 along with goods. This factual aspect narrated in claim petition have not been specifically denied by appellant insurance company at the time when reply was filed vide Exh.19. Only one contention was raised that deceased was travelling as gratuitous passenger in truck in question at the time of accident, but, it was not made clear by making clear denial that deceased was not travelling as owner of goods on the date of accident. The relevant paragraph 5 where contents of written statement are narrated by claims tribunal is quoted as under : "5. Opponent No.3- Insurance Co. The relevant paragraph 5 where contents of written statement are narrated by claims tribunal is quoted as under : "5. Opponent No.3- Insurance Co. appeared before this Tribunal through its learned Advocate and filed written statement against the application at exh. 19 generally the allegations and averments made by the petitioner in their petition, and ultimately prayed to dismiss the petition. It is contended that the petition is not in proper form; that the Truck No. GJ4 V 4041 was not insured with this insurance co. at the time of accident; that the driver - Opponent No.1 was not having valid and effective driving license at the time of accident; that the claim is exorbitant. It is specific contentions of this opponent that, the deceased was travelling as gratuitous passenger in the truck in question at the time of accident, and therefore, in view of breach of condition of policy, this opponent is not liable to pay compensation to the claimants. It is contended that this Insurance Co. is not liable to pay any compensation and the petitioners are not entitled to get any compensation. Ultimately, it is prayed that this petition may be dismissed." 6. The claimants were examined before claims tribunal. In cross-examination of claimant, advocate of appellant insurance company was not able to take out any facts which support the defence of insurance company. On the contrary, claimant has made clear statement that on the date of accident, deceased was travelling as owner of goods in goods vehicle. Therefore, two evidence were available with claims tribunal; one is averments made in claim petition and another is evidence of claimant. Against which, no specific denial is made by appellant insurance company before claims tribunal in filing written statement and on that basis, question of liability has been examined by claims tribunal. Initial burden of proving facts that on the date of accident, deceased was travelling as owner of goods in goods vehicle is established by leading proper evidence before claims tribunal by claimant. But, this fact has to be disproved by appellant insurance company by leading proper evidence either of driver/cleaner or owner of vehicle. The appellant insurance company has not led any oral evidence as a rebuttal to the evidence of claimant before claims tribunal. Merely submission was made by learned advocate Mr. But, this fact has to be disproved by appellant insurance company by leading proper evidence either of driver/cleaner or owner of vehicle. The appellant insurance company has not led any oral evidence as a rebuttal to the evidence of claimant before claims tribunal. Merely submission was made by learned advocate Mr. K.M. Patel appearing on behalf of appellant insurance company before claims tribunal that deceased person was not travelling along with goods, but, he was travelling in goods vehicle as illegal or gratuitous passenger. This contention has been examined by claims tribunal that claimant has categorically and clearly narrated in claim petition that deceased person was travelling in aforesaid goods vehicles along with goods more particularly oral evidence is also given in support of claim petition. Therefore, in cross-examination, no contrary evidence has been obtained either to rebut the aforesaid pleadings as well as deposition of claimant in support of defence nor any documentary evidence has been produced. Therefore, what is revealing from the claim petition duly supported by oral evidence in the nature of claim affidavit of the claimant must have to be accepted which has been rightly accepted by claims tribunal. In FIR and Panchnama, there is no indication in respect of fact that whether deceased persons were travelling as owner of goods or not ? because, for that, facts of FIR remain silent, but, that doesn't mean that averments made in claim petition supported with affidavit can be ignored by claims tribunal. Therefore, in absence of any contrary evidence either in nature of positive evidence of insurance company or through the police papers, the evidence produced and adduced by claimant can be believed by claims tribunal which has been rightly believed by claims tribunal. 7. Further contention is that if deceased was travelling as owner of goods then whatever goods lying with deceased are not satisfying definition of 'Goods' given in Section 2(13) of MV Act. This specific contention was not raised at all before claims tribunal by appellant insurance company and not even asked to claimant that what kind of goods was lying with deceased at the time when accident has occurred. Therefore, first time it is raised before this Court by appellant insurance company which pertains to factual aspect. Now, this Court cannot examine such type of contention which has been raised first time before this Court. 8. Therefore, first time it is raised before this Court by appellant insurance company which pertains to factual aspect. Now, this Court cannot examine such type of contention which has been raised first time before this Court. 8. In light of this background, question of breach of condition of insurance contract raising by appellant insurance company whether deceased was travelling with their goods in the truck or not ? Then, it is a burden upon insurance company to prove it by leading proper evidence when claimants have not admitted facts that deceased person was travelling in goods vehicle without goods or as unauthorised passenger. This question has been considered by Division Bench of this Court in case of National Insurance Co.Ltd. vs. Lakhuben Punabhai Vaghari and Ors. reported in 2006(2) GLH 468. The relevant discussion is made in paragraphs 5 to 7 which are quoted as under : "5. After hearing the learned counsel for the appellant and going through the material on record, we are unable to agree with the aforesaid contentions urged by the learned counsel for the appellant. It is not disputed that in the claim petitions there is a clear and specific averment that the deceased persons were carrying goods and had boarded the truck alongwith their goods. Apart from the general denial of the averments therein, the appellant, in the written statement filed before the M.A.C.Tribunal, has not specifically denied this averment that the deceased were travelling in the truck alongwith their goods. Moreover, this fact would have been clarified had the driver of the offending truck been examined by the present appellant, but this has not been done. It should be kept in mind that the complaint was filed by none other than the conductor of the offending truck,after the driver ran away from the spot when the accident took place. The fact that there is no mention of the goods of the deceased in the panchanama by the Panchas does not disprove the specific averment made by the claimants that the deceased persons were travelling in the truck alongwith their goods. It is possible that while extricating the dead bodies from under the heavy quantity of fertilizer, the goods might not have been visible as the main aim was to bring out the dead bodies of the persons buried under the fertilizer and not to salvage the goods of the deceased persons. 6. It is possible that while extricating the dead bodies from under the heavy quantity of fertilizer, the goods might not have been visible as the main aim was to bring out the dead bodies of the persons buried under the fertilizer and not to salvage the goods of the deceased persons. 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 averments in the claim petitions that the persons were travelling along with 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 (Narchinva 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 intergra 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) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx (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 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 along with 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 is rightly been relied upon by the M.A.C. Tribunal to come to the conclusion that the deceased persons were travelling in the truck along with 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." 9. This Court has also considered question that whether insurance company is liable for claim for death of/injury to, gratuitous passengers travelling in a private jeep/car. The burden of proof is on insurance company to establish that passenger was carried for hire/reward in breach of terms of policy. Similarly, in facts of this case, burden is upon insurance company to prove it that persons those who were travelling at the time when accident occurred whether they were travelling as owner of goods or not? First is to be established by claimant which has been established by claimant with proper evidence, then, burden is shifted upon insurance company to disprove it, which has been considered in case of United India Insurance Co. Ltd. vs. Lalitaben Vinodbhai Punjabhai Vankar & Ors. reported in 2008(4) GLR 3104. The relevant is para 9 which is quoted as under : "9. Ltd. vs. Lalitaben Vinodbhai Punjabhai Vankar & Ors. reported in 2008(4) GLR 3104. The relevant is para 9 which is quoted as under : "9. In this case, Insurance Company has not appointed investigator to inquire as to whether jeep was taken by deceased on hire or not. When the Insurance Company is having the investigator, then, such work can be entrusted by the Insurance Company to investigate, but, insurance company has not made any efforts to find out the correct facts being a rebuttal evidence against the claimant. If investigator was appointed, then, he can obtain the statement of owner and driver and thereafter, he can be examined in support of his report by the insurance company to prove the contention or defence raised by insurance company before the Claims Tribunal. But, insurance company remained silent and no evidence was led for proving their defence before the Claims Tribunal. The defence of Insurance Company is that there was a breach of condition of policy has not established that insured was responsible for the breach. Section 149(2) of Motor Vehicles Act, in case of breach of terms of policy onus is on Insurance Company to prove the breach. "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 the conditions of policy on the part of the insured, the Insurance Company cannot be absolved of its liability. Each case may post different problem which must be resolved having to a large number of factors governing the case including conduct of parties as regard duty to inform, correct disclosure, suppression, fraud on the insurer etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard and fast rule, can therefore, be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. No hard and fast rule, can therefore, be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of conditions of contract of insurance on the part of the insurer by discharging its burden of proof. The Tribunal, there cannot be any doubt must arrive at a finding on the basis of the materials available on records. National Insurance Co. Ltd. vs. Swaran Singh, 2004(2) GLR 989 (SC) : AIR 2004 SC 1531 : 2004(3) SCC 297 : 2004 (1) GLH 691 (SC). (1) United India Insurance Co. Ltd. vs. Jaimy, 1998 (II) ACC 201 : 1998 ACJ 1318, approved. (2) V. Mepherson vs. Shiv Charan Singh, 1998 (I) ACC 6 : 1998 ACJ 601 (Del.), approved. (3) New India Assurance Co. Ltd. vs. Jagtar Singh, 1999 (I) ACC 459 : 1998 ACJ 1074, approved. (4) National Insurance Co. Ltd. vs. Ishroo Devi, 1999 (I) ACC 641 (DB) : 1999 ACJ 615, approved. (5) New India Assurance Co. Ltd. vs. Latha Jayaraj, 1991 (I) ACC 362 (DB) : 1991 ACJ 298 (Ker.), approved. xxx xxx xxx The legislature, in its wisdom, has made insurance, at least third-party insurance, compulsory. The aim and purpose being that an Insurance Company would be available to pay. The business of the company is insurance. In all business, there is an element of risk. All persons carrying on business must take risks associated with that business. Thus, it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time, innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in the aforementioned cases viz., that in order to avoid liability, it is not sufficient to show that the person driving at the time of accident was not duly licensed. The Insurance Company must establish that the breach was on the part of the insured. United India Insurance Co. Ltd. vs. Lehru, 2003 (2) GLR 1771 (SC) : AIR 2003 SC 1292 : 2003 (#) SCC 338." 10. Similarly, same question has been examined by this Court in case of National Insurance Co. The Insurance Company must establish that the breach was on the part of the insured. United India Insurance Co. Ltd. vs. Lehru, 2003 (2) GLR 1771 (SC) : AIR 2003 SC 1292 : 2003 (#) SCC 338." 10. Similarly, same question has been examined by this Court in case of National Insurance Co. Ltd. vs. Maganbhai Arjabhai Rudani reported in 2008(4) GLR 3352, where, question is whether deceased was travelling in goods vehicle as owner of goods or as unauthorised passenger. The driver of offending vehicle was not examined. No mention of goods in panchnama and FIR. Held on facts, burden to prove that deceased was travelling as unauthorised passenger is on insurance company. The relevant is para 7 which is quoted as under : "7. Therefore, the contention which has been raised by Insurance Company positively when none of the person of Insurance Company was an eye-witness to the accident even though emphasis on that part that deceased was not travelling as an owner of goods on what basis, such contention was raised by the Insurance Company, actually, there is no base except presumption, but, according to law, the contention, which has been raised by party, must have to be proved by leading proper evidence before the Tribunal to the satisfaction of the Tribunal. Here, the submission of the lawyer is that though Insurance Company is having the contention raising specifically before the Tribunal, but, no evidence is led in support of his contention and then blame to the Tribunal that Tribunal has not considered this contention. Such approach of the part of the lawyer appearing on behalf of Insurance Company is not proper. Learned advocate Mr. Shah submitted that there is no proof of goods lying at a place of accident, but, it is a matter of common sense that ice would not be remained intact if the panchnama was not drawn on the said date immediately. That aspect was rightly appreciated by the Tribunal." 11. The said question has been examined by Apex Court in case of U.P. State Electricity Board and Another vs. Aziz Ahmad reported in 2009-II-LLJ 315 (SC), where, it is decided that burden of proof of particular fact is on person alleging it. The relevant is paragraph 17 which is quoted as under : "17. The said question has been examined by Apex Court in case of U.P. State Electricity Board and Another vs. Aziz Ahmad reported in 2009-II-LLJ 315 (SC), where, it is decided that burden of proof of particular fact is on person alleging it. The relevant is paragraph 17 which is quoted as under : "17. Being conscious of the aforesaid legal position we are of the considered opinion that the learned Industrial Tribunal committed a manifest error of law and of fact initially by placing the burden on the employer to prove and establish the job requirements of the said three posts, and thereafter, again committed an error in coming to the conclusion that the posts are identical on the basis of the pleadings of the parties alone. Pleadings are required to be proved and so long evidence is not led in support of the pleadings no reliance can be placed only on the pleadings without there being any cogent evidence in support of the pleadings. Pleadings are required to be proved by leading evidence. The Tribunal expressly stated in its findings that none of the parties have filed any objective data in regard to the work assessment of the posts of Boiler Overhauling Mechanic, Boiler Mistry or Fitter. In absence of such evidence the Tribunal was not justified in coming to a conclusion that the nature, duties and responsibilities of the three posts are identical and similar." 12. It is also necessary to note that learned advocate Mr. Parikh was appearing on behalf of appellant - insurance company in group of First Appeal Nos.2454 of 1996 to 2461 of 1996 which is decided by this Court on 3rd December 2009. This Court has elaborately discussed and decided same contentions raised by same learned advocate Mr. Parikh before this Court in same set of facts. Therefore, relevant discussions were made in aforesaid decision of this Court are necessary to be incorporated here, therefore, paragraph Nos.10 to 20 are quoted as under. In said decision, relevant decisions cited by learned advocate Mr. Parikh is also considered by this Court. "10. The contention raised by learned advocate Mr. Parikh that while deciding question of liability, claims tribunal has considered Section 95(2) of old MV Act, 1939. The contention raised by learned advocate Mr. In said decision, relevant decisions cited by learned advocate Mr. Parikh is also considered by this Court. "10. The contention raised by learned advocate Mr. Parikh that while deciding question of liability, claims tribunal has considered Section 95(2) of old MV Act, 1939. The contention raised by learned advocate Mr. Parikh cannot be accepted because amendment is made in MV Act on 14th November 1994 and accident occurred on 20th March 1995. Therefore, considering provisions of Section 95 and amendment provision of Sec.147 reads together, the relevant question is whether in goods vehicle, passengers are not allowed to be travelled and all persons those who were travelling on the date of accident, they were travelling as unauthorised passengers in the goods vehicle and there is a permit of goods vehicle only and therefore, insurance company is not liable for payment of compensation or not ? The risk of such persons are also not covered in terms of insurance policy. No additional premium was paid by insured to insurance company. The claims tribunal has considered old provision as well as Section 147 of new Act which correspondence to Section 95 of old Act, there is no limit to entertain cases as contained in Clause (ii) of Section 95 of old Act. The corresponding proviso of the Act contained three Clauses, whereas, there are only two Clauses. What was dropped in the new Act is a clause which include the coverage for the death or bodily injuries to persons carried in or upon the vehicle. That means, such liability cannot excluded from the policy. Therefore, claims tribunal has considered that risk of hirer or his bonafide employees carried within limited on the goods vehicles is covered by virtue of Second Clause of proviso of Section 96. Moreover, it is laid down in 1995 Civil Court Ruling 553 by Kerala High Court in case of United India Insurance Co. Ltd. vs. Appu Kutan. This judgment has been delivered by Justice K.T. Thomas and Justice N. Dinakar that the position has completely been changed when new MV Act, 1988 came into force. Therefore, in reality or in fact, claims tribunal has merely discussed the old law of 1939 with Sec.95 while comparing provisions of new Act, 1988 r/w. Sec.147(1). Therefore, it cannot be considered that question of liability has been examined by claims tribunal merely based on old Act. Therefore, in reality or in fact, claims tribunal has merely discussed the old law of 1939 with Sec.95 while comparing provisions of new Act, 1988 r/w. Sec.147(1). Therefore, it cannot be considered that question of liability has been examined by claims tribunal merely based on old Act. Such contention is apparently, while considering discussion in Para 25, cannot be accepted, because, claims tribunal has considered old and new, both, Acts and what is change in new Act has also been considered while relying upon Sec.147 and decision of Kerala High Court as referred above. Therefore, contention raised by learned advocate Mr. Parikh cannot be accepted. 11. Further contention is that claims tribunal has wrongly relied upon decision of this Court in case of Nathiben (supra). But, merely discussing the case of Nathiben (supra) as decided by this Court while appreciating old provision as well as new provision and what is the change came into effect while amending the Act of MV Act, 1988 on 14th November 1994, for that purpose only, discussing and referring certain decisions which are relating to old Act cannot consider to be argued to the effect that entire matter has been discussed and decided including question of liability by claims tribunal relying upon old provisions of Sec.95 of MV Act, 1939. Therefore, that contention also cannot be accepted. 12. Learned advocate Mr. Parikh relied upon averments made in claim petition at page 5 - paragraph 10. I have considered paragraph 10 - page 5 of Paper Book. In paragraph 10, it is made clear by claimants that on 20th March 1995, they were travelling in goods vehicle Truck No.GTB-2443 along with their goods. At that time, when deceased along with other persons were travelling in truck, certain other passengers were also travelling in said truck. The complaint was filed against driver of truck and due to rash and negligent driving of driver, accident is occurred. Therefore, learned advocate Mr. Parikh submitted that FIR has been relied upon by claimants, therefore, it becomes a part of claim petition, which cannot be accepted, because, merely referring the fact that complaint was filed against respondent No.1 - driver and he was arrested and police case was lodged against him which does not mean that FIR has been relied upon by claimants as per averments made in para 10 of claim petition. The type copy of FIR dated 20th March 1995 has been shown to this Court which was given by one Mansukhbhai Chothabhai who was one of the passenger travelling in goods vehicle. In this FIR, persons those who were travelling on 20th March 1995 in goods vehicle are the owner of goods and certain item including three bicycles were also loaded and some of the persons having the bags of Juvar. So, contention raised by learned advocate Mr. Parikh that FIR is filed by Mansukhbhai Chothabhai referred in claim petition in Para 4, therefore, it considers to be a part of claim petition which cannot be accepted. The paragraphs 10 only referred the facts of complaint filed against driver and police case was registered against him and he was arrested by police. Except that, it is not stated by claimant that FIR is considered to be a part of claim petition. It is also necessary to consider Panchnama after accident. The goods which were taken by persons at the time of accident, were lying at the place of accident which found from place of accident has recorded in Panchnama. Three bicycles were also found from place of accident and bags of Juvar also found from place of accident which were taken by persons at the time when accident occurred in goods vehicle. Therefore, contention raised by learned advocate Mr. Parikh that FIR relied upon by claimants or FIR is considered to be a part of claim petition cannot be accepted. 13. Learned advocate Mr. Parikh relied upon definition of 'Goods' under Section 2(13) of MV Act, which is quoted as under: "Sec. 2(13) - _Goods_ includes livestock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle." 14. While relying upon aforesaid definition of 'Goods', he emphasises that the personal luggage of passengers or luggage or personal effects carry in motor car or in trailer attached to motor car does not include. In support of that, he relied upon aforesaid three decision as referred above. While relying upon aforesaid definition of 'Goods', he emphasises that the personal luggage of passengers or luggage or personal effects carry in motor car or in trailer attached to motor car does not include. In support of that, he relied upon aforesaid three decision as referred above. The Head Note of three decisions are quoted as under : "(1) In case of Cheekati Nageshwar Rao vs. G. Rama Rao and Another reported in 2006 ACJ 2248 of Andhra Pradesh High Court. The Head Note is as under : "Head Note : Motor Vehicles Act, 1988, section 147(1)(b)(i) read with section 2 (13)- Motor Insurance-Goods vehicle-Passenger risk-Passenger travelling along with his 'goods'- Liability of insurance company-Person travelling in truck along with deflated tyre to get it repaired sustained injuries when the truck met with accident-Tribunal awarded compensation against owner of vehicle exonerating the insurance company-Contention that injured was travelling in the truck along with his goods and insurance company is liable-whether the Tribunal was justified in exempting insurance company from liability-Held:yes;deflated tyre does not constitute 'goods' as defined in the Act. (Para 5) Motor Vehicles Act, 1988, section 147 (1) (b) (i) - Motor insurance-Goods vehicle-Passenger risk-Liability of insurance company- Injured was travelling in the goods vehicle as passenger and the Tribunal exempted insurance company from liability - contention that where there is breach of policy by insured, insurance company has to pay compensation to the claimant and recover that amount from the owner-Whether insurance company is liable in the first instance to pay compensation and then entitled to recover from the owner-Held: no; there has no breach of terms and conditions of the policy; carrying passenger in a goods vehicle is a violation of the provisions of the Act. (Para 5)" (2) In case of National Insurance Co. Ltd. vs. Cholleti Bharatamma and Others reported in (2008) 1 SCC 423 . The Head Note is as under : "Head Note - (A). (Para 5)" (2) In case of National Insurance Co. Ltd. vs. Cholleti Bharatamma and Others reported in (2008) 1 SCC 423 . The Head Note is as under : "Head Note - (A). Motor Vehicles Act, 1988-S. 147-Goods carriage - Liability in respect of owner of goods or authorised representative- Scope of - Person(s) who can be covered as _owner or his authorised representative_ - Necessity of determination of the mode of travel and number of person(s) so covered-Owner, if must travel only in the cabin of the vehicle and not with the goods so as to be covered under S.147-Nature of goods-Effect of, on mode of travel necessary by owner to claim protection under S. 147-Hence necessary to show that the deceased was travelling in the lorry along with the driver or the cleaner as the owner of the goods-Travelling with the goods itself does not entitle anyone to protection under S. 147. B). Motor Vehicles Act, 1988-S. 147-Goods carriage-Passengers travelling in goods carriage whether gratuitous or otherwise, reiterated, are not covered." (3) In case of National Insurance Co. Ltd. vs. Rattani and Others reported in (2009) 2 SCC 75 . The Head Note is as under : "Head Note - A). Motor Vehicles Act, 1988-S. 147-Representative(s) of owner of goods-Persons covered-Members of marriage party travelling in truck allegedly transporting gifts received from bride party, held, cannot fall into the above category-In any case, on facts, it was admitted that there were no gift articles in the vehicle concerned - Victims of the accident were travelling in truck as gratuitous passengers. B). Motor Vehicles Act, 1988 - Ss. B). Motor Vehicles Act, 1988 - Ss. 147 and 173 (1) - Appeal - Appreciation of evidence by Supreme Court - When warranted - FIR made part of claim petition- Admissibility of - Held, ordinarily Supreme Court would not have entered into realm of appreciation of evidence but as High Court failed and / or neglected to do so, no other option exists- Ordinarily allegations made in FIR not admissible in evidence per se but as the allegation made in FIR had been made a part of the claim petition, Tribunal and the appellate courts entitled to look into the same - Furthermore, an admission made in the pleadings is admissible in evidence proprio vigore - Evidence Act, 1872-S. 58 - Criminal Procedure Code, 1973-S. 157-Civil Suit - Constitution of India - Art. 136-Interference of motor vehicle matters - Reappreciation of evidence - When warranted. C). Evidence Act, 1872-Ss. 101, 102 and 52 - Discharge of burden of proof in case of admitted facts-Need to produce direct evidence - Held, there is no such need." 15. Learned advocate Mr. Parikh heavily relied upon definition of 'Goods' under Sec.2(13) of MV Act, 1988. But, it is necessary to note that in written statement filed by insurance company before claims tribunal Exh.13, nowhere such contention is raised by appellant - insurance company before claims tribunal that persons those who were travelling on the date of accident, they were travelling as owner of goods, but, goods which are lying with persons is not covered by definition of goods given in Section 2(13) of MV Act, 1988. Before claims tribunal, in written statement Exh.13, only contention was raised that opponent No.1 was driving said Career in contravention of condition incorporated in insurance policy. Therefore, insurance company is not liable to pay compensation to claimants. Except that, in written statement, no other contention is raised by appellant - insurance company before claims tribunal. Therefore, para 7 of award is quoted as under : "7. Opponent No.3 i.e. Insurer has filed its written statement at exh. 13 and contended that the petitioner are neither true, nor legal, nor bonafide and they do not admit the claims or any part thereof unless it is specifically admitted in the written statement. Therefore, para 7 of award is quoted as under : "7. Opponent No.3 i.e. Insurer has filed its written statement at exh. 13 and contended that the petitioner are neither true, nor legal, nor bonafide and they do not admit the claims or any part thereof unless it is specifically admitted in the written statement. It appears that the insurer has also raised almost same contentions in all the petitioners they have also requested to dismiss all the claim petitions with cost etc. It is contended that opponent no.1 was driving the said carrier in contravention of the conditions incorporated in the insurance policy and therefore also the insurer is not liable for the damages, if any caused to the petitioners. It is denied that opponent no.1was driving the said carrier in a rash and negligent manner, it is contended that opponent no.3 is not the insurer of the vehicle involved in this incident, it is contended that Opponent No.1 was not holding a valid driving license. It appears that they have take almost all the same contentions in all the petitions and have denied all the averments averred by the petitioners regarding rash and negligent driving of opponent no.1 quantum of compensation, age income, injuries a etc. of the deceased as well as injured petitioners and have prayed to dismiss all the petitions etc." 16. The appellant - insurance company while cross-examining claimant not raised any question about kind of goods lying with persons those who are travelling in goods vehicle on the date of accident. On the contrary, in cross-examination, a denial was given in respect of fact that person was not travelling along with goods by claimant, meaning thereby that claimant has made clear statement in chief that persons those who were travelling in goods vehicle, they were travelling along with their goods. Even this evidence remains in tact in cross-examination made by advocate of insurance company before claims tribunal. It is necessary to note that each claimant has made clear statement that they were travelling along with their goods and Rs.300/'- amount was paid only for carrying goods along with them. But, in cross-examination, advocate of insurance company was not able to take out any adverse facts to the claimant. It was also denied by claimants in their evidence that they were travelling as unauthorised passengers. But, in cross-examination, advocate of insurance company was not able to take out any adverse facts to the claimant. It was also denied by claimants in their evidence that they were travelling as unauthorised passengers. Therefore, considering entire evidence of claimants including cross-examination, facts were proved by claimants that persons those who were travelling on date of accident in goods vehicle, they were not travelling as unauthorised passenger, but, they were travelling as owner of goods. The advocate of insurance company has not put up any question that which kind of goods were lying with them at the time of accident and on the basis of aforesaid evidence, no arguments have been made by advocate of insurance company before claims tribunal that whatever goods were lying with persons those who were travelling in goods vehicle are not covered under definition of 'Goods' under Section 2(13) of MV Act. This being a question which has been raised first time before this Court which is relating to mixed question of facts and law. If at this stage, it is entertained, then, it cause great prejudice to claimant because they may not have any opportunity to meet with such contention before claims tribunal. Therefore, according to my opinion, definition of goods was in old Act remains as it is even though this contention was not specifically raised before claims tribunal by appellant - insurance company, meaning thereby that such contention has been waived by appellant - insurance company. Now, such contention cannot be permitted to be raised first time before this Court. 17. It is also necessary to note that in para 22 where contention raised by advocate of insurance company where only contention was raised that persons those who were travelling at the time when accident occurred in goods vehicle, they were unauthorised passengers and passengers are not allowed to be travelling in goods vehicle and all these persons were unauthorised passengers in this Career. For that, there is no permit issued by RTO Authority and only having permit of goods vehicle. Therefore, insurance company is not liable for the damages. Except that, no other contention is raised by appellant - insurance company before claims tribunal. For that, there is no permit issued by RTO Authority and only having permit of goods vehicle. Therefore, insurance company is not liable for the damages. Except that, no other contention is raised by appellant - insurance company before claims tribunal. Therefore, claims tribunal has not examined this issued as to whether claimants or persons those who were travelling as owner of goods is satisfied definition of 'Goods' under Section 2(13) of MV Act, 1988 or not ? This contention has been raised first time before this Court by appellant - insurance company. 18. I have scanned and perused entire appeal memo filed by appellant - insurance company before this Court. In entire appeal memo while giving facts, grounds have been made about 31 in number. In none of the ground, appellant - insurance company has raised that persons those who were travelling at the time when accident occurred in goods vehicle as owner of goods, that goods lying with persons is not satisfied definition of 'Goods' given in Sec.2(13) of MV Act, 1988. So, grounds which are not raised in appeal memo, appellant insurance company is not entitled to raise such contention before this Court first time. Therefore, contention in respect of that persons those who were travelling as owner of goods, but, that goods is not satisfied the requirement of definition of Section 2(13) of MV Act, 1988. Such contention is not raised in appeal memo. It is not in dispute from the record that looking to FIR, Panchnama, averments made in claim petition - para 10, it was made clear by claimant and also found from record that on the date of accident, persons those who were in goods vehicle in question, were travelling as owner of goods. For that also, appellant - insurance company has not raised any dispute because it was reflected in FIR, Panchnama and Para 10 of claim petition, where, specific averments made. Therefore, if no dispute is raised by appellant - insurance company before claims tribunal that persons those who were travelling as owner of goods, then, amended Act, 1988 is squarely covered Sec.147(1) of MV Act, 1988 as 'any person including owner of goods or is authorised representative carried in vehicle'. Therefore, if no dispute is raised by appellant - insurance company before claims tribunal that persons those who were travelling as owner of goods, then, amended Act, 1988 is squarely covered Sec.147(1) of MV Act, 1988 as 'any person including owner of goods or is authorised representative carried in vehicle'. Therefore, when accident occurred on 20th March 1995, amended Act is came into force, therefore, under Sec.147 is applicable to the facts of this case and according to Sec.147(1)(b)(i) of MV Act, 1988, where, against any liability which may be incurred by him in respect of death or bodily injury to any person including the owner of goods or is authorised representative carried in vehicle. This being a statutory coverage given by provisions of Sec.147 of MV Act, 1988, therefore, at the time when accident occurred, persons those who were travelling in goods vehicle, they were all travelling as owner of goods, against which, no rebuttal evidence produced by appellant - insurance company. Not only that, these facts of travelling as owner of goods is not disputed by appellant - insurance company before claims tribunal either in written statement or in oral submission. Therefore, contention which has been raised first time by learned advocate Mr. Parikh, was not raised in memo of appeal and neither stated in written statement nor argued this point before claims tribunal by appellant - insurance company. In such circumstances, first time, if such contention is raised by appellant - insurance company before this Court, this Court cannot entertain such contention which is relating to mixed question of facts and law as per decisions of Apex Court; (I) in case of Krishi Utpadan Mandi Samiti through its Secretary, Anand Nagar vs. Arvind Chaubey and Another reported in 2003-I-LLJ 507 (ii) in case of Orissa Industrial Infrastructure Development Corporation vs. Ashok Kumar Sing and Others reported in 2006 SCC (Lab. & Service) 999 (iii) in case of National Fertilizers & Others vs. Somvir Singh reported in 2006 AIR SCW 2972. Recently, Apex Court has also decided that first time raising contention in appeal is not permissible when appeal is preferred under Sec.173 of MV Act in case of Usha Rathore and others vs. National Insurance Co. Ltd. and Others reported in 2009 ACJ 214 (Madhyra Pradesh High Court, Gwalior Bench) Therefore, decisions which have been relied upon by learned advocate Mr. Ltd. and Others reported in 2009 ACJ 214 (Madhyra Pradesh High Court, Gwalior Bench) Therefore, decisions which have been relied upon by learned advocate Mr. Parikh as referred above are not helpful to learned advocate Mr. Parikh, because, in absence of contention, such decisions cannot be applied to the facts of present case. 19. Recently, Apex Court has decided the said question in case of National Insurance Co. Ltd. vs. Saroj and others reported in 2009 ACJ 2161 SC. The relevant paragraph 17 is quoted as under : "17. Contention raised on behalf of the appellant that the claimant had not disclosed as to what amount they had received from the insurance company with whom the scooter driven by the deceased was insured cannot be considered by us for the first time as no such contention has been raised before the courts below. The legal representatives of the deceased examined themselves as witnesses. They should have cross-examined on the said question. The insurance company could have found out from other insurance company also as to whether, in fact, a claim had been advanced and whether insurance company paid any amount to them." 20. In view of above observations made by this Court and considering entire matter as discussed by claims tribunal and also keeping in mind contention raised by learned advocate Mr. Parikh, according to my opinion, persons those who were travelling at the relevant time as owner of goods in goods vehicle are squarely covered under Sec.147(1)(b)(i) of MV Act, 1988. Therefore, insurance company is liable to pay amount of compensation to claimant being a statutory liability and risk of such persons is also covered statutorily in insurance policy issued by insurance company to insured. Therefore, insurance company cannot be denied such statutory liability for payment of compensation to claimants which has been rightly decided and examined by claims tribunal. For that, claims tribunal has not committed any error which required interference by this Court. Therefore, contentions raised by learned advocate Mr. Parikh cannot be accepted, hence, same are rejected." 13. In view of aforesaid discussion and reasoning given by this Court and also considering earlier decision where identical question has been examined by this Court as referred above, according to my opinion, contention raised by learned advocate Mr. Parikh has no substance and therefore, same are rejected. Parikh cannot be accepted, hence, same are rejected." 13. In view of aforesaid discussion and reasoning given by this Court and also considering earlier decision where identical question has been examined by this Court as referred above, according to my opinion, contention raised by learned advocate Mr. Parikh has no substance and therefore, same are rejected. The claims tribunal has rightly examined matters on the basis of evidence which are on record. For that, claims tribunal has not committed any error which requires interference by this Court. The finding and reasoning given by claims tribunal is based on legal evidence which cannot consider that finding and reasoning given by claims tribunal is baseless and perverse. 14. Therefore, there is no substance in first appeals filed by appellant insurance company. Accordingly, all first appeals are dismissed. 15. When appeals are dismissed by this Court today, no order is required to be passed in civil applications. Hence, all civil applications are disposed of. 16. The amount, if any, deposited by appellant insurance company before registry of this Court, be transmitted to claims tribunal concerned, immediately. 17. Record and Proceedings, if available, be sent back to claims tribunal concerned, forthwith.