JUDGMENT : H.K. Rathod, J. Heard learned advocate Ms. Megha Jani on behalf of appellant National Insurance Co. Ltd, learned advocate Mr. M.S. Shah appearing for respondent claimants. 2. The appellant insurance company has challenged common award passed by Motor Accident Claims Tribunal, FTC Godhara in MACP no. 1428, 2763 and 2764 of 2001 decided on 7-6-2008. The claims Tribunal has awarded Rs. 3,34,000/- in MACP no. 1428 of 2001, Rs. 1,73,856/- in MACP no. 2763 of 2001, and Rs. 65,342/- in MACP no. 2764 of 2001 with 7.5% interest in favour of respondent claimants. 3. The accident occurred on 24-5-2001 in truck no. GTK 2247 which belongs to respondent no. 2-A.Y. Bakkar and respondent no. 1 Madhusingh Rupsingh Patel was driver of truck. According to claimants they were working as labourer going Rasulpur to Machhelav for loading wooden parts. Meanwhile opponent no. 1 driver driving truck with rashly and negligently. At about 10.30 am near Toyani village, additional wheel has been separated from truck which resulted, truck turned turtled and went to ditch in gutter. Due to this accident, certain labourers received injuries and one Punabhai Bhudarbhai was died. 4. The reply filed by insurance company before claims Tribunal vide Exhs. 56 to 58 in each claim petition separately. It is necessary to note that driver and owner remained absent, therefore, ex-parte award is passed against both. In reply, contention is raised by appellant insurance company that in truck, at the time of accident more than prescribed labourers were travelling contrary to policy issued by appellant insurance company i.e. how breach committed by owner of vehicle. 5. The issues have been framed vide Exh. 20 and 13 by claims Tribunal. Before claims Tribunal, Exh 33 copy of complaint, Exh. 34 copy of panchnama, Exh. 35 copy of PM note of Punabhai, Exh. 37 medical certificate, Exh. 38 discharge card, Exh. 39 medical bills, exh 41 certificate of Dr. Bhavsnar, Exh. 63 policy issued by insurance company, Exh. 64 copy of Indian Motor Tarrif and Exh. 65 ex-parte award passed by claims Tribunal in MACP no. 3415 of 2001 produced on record by claimants. 6. The respective parties have produced certain documents before claims Tribunal in support of their contentions. According to evidence of claimants, they all were travelling as labourer in truck no. 64 copy of Indian Motor Tarrif and Exh. 65 ex-parte award passed by claims Tribunal in MACP no. 3415 of 2001 produced on record by claimants. 6. The respective parties have produced certain documents before claims Tribunal in support of their contentions. According to evidence of claimants, they all were travelling as labourer in truck no. GTK 2247 from Rasulpur to Machhelav for loading wooden parts and while going to loading wooden parts, accident occurred due to rash and negligent driving of driver. The claims Tribunal has decided rash and negligent driving of opponent no. 1 driver and claims Tribunal has considered amount of compensation in respect to each claim petition. 7. The arguments made by advocate of insurance company as referred in para 17 of award that at the time of accident in truck more than prescribed labourers were travelling, which amounts to breach of condition of policy. Therefore, insurance company is not liable to pay compensation. On behalf of claimants decisions of Apex Court in case of National Insurance Co. Ltd v. Baljit Kaur reported in 2004 (2) SCC 1 , as well as in case of National Insurance Co. Ltd v. Prabha Devi and Ors reported in 2006 ACJ 113 have been relied by advocate of claimants. 8. It is necessary to note, from entire award which discussed in para 11 about evidence of respective parties, on behalf of insurance company no oral evidence led by appellant insurance company as referred in para 19 of award. The claims Tribunal has observed that on behalf of insurance company, no clear evidence produced on record, only insurance policy was produced and all claimants were travelling as labourer. 9. The claims Tribunal has discussed case of National Insurance Co. Ltd v. Mannibai and Ors reported in 2006 ACJ 115 , in case of Oriental Insurance Co. Ltd v. Sunita Devi and Ors reported in 2006 ACJ 234, in case of New India Insurance Co. Ltd v. Nabakumar Mondal & Ors reported in 2006 ACJ 238 , in case of National Insurance Co. Ltd v. Nanda and Ors reported in 2006 ACJ 62 and in case of National Insurance Co. Ltd v. Challa Bharthamma and Ors reported in AIR 2004 SC 4882 . 10. On behalf of insurance company, decisions of Apex Court have been cited i.e. in case of National Insurance Co. Ltd v. Nanda and Ors reported in 2006 ACJ 62 and in case of National Insurance Co. Ltd v. Challa Bharthamma and Ors reported in AIR 2004 SC 4882 . 10. On behalf of insurance company, decisions of Apex Court have been cited i.e. in case of National Insurance Co. Ltd v. Govindmaya and Ors reported in 2006 ACJ 563 , in case of National Insurance Co. Ltd v. Bhumithi Subbhayamma and ors reported in 2005 ACJ 721, in case of Jaykumar v. Rajamma and Ors reported in 2005 ACJ 172, in case of Samjuben Bhikhabhai & Ors v. Koli Lalji Naku and Ors reported in 2001 ACJ 56 . 11. The reasoning given by Claims Tribunal in para 22 and considered decisions which have been relied by both parties, claims Tribunal has observed that in case when more than six labourers are travelling in truck, it amounts to breach of policy but claims Tribunal has considered, even in case of breach of policy, insurance company can pay amount to claimants and then to recover amount from owner and driver of vehicle. The claims Tribunal has considered that this being beneficiary legislation require to protect interest of claimant and in such circumstances merely more than prescribed limits labourers are travelling in truck, they should not have to be denied benefit of compensation but same can be paid by insurance company, even though, insurance company is not held liable and then insurance company can recover from owner and driver of vehicle. Accordingly, award has been passed. 12. Looking to appeal memo ground "C", appellant issued insurance policy which was used for carriage of passengers at the time of accident leading to breach of terms and conditions of policy. So, truck was considered as "Passengers vehicle" not "Goods vehicle". In such circumstances, policy which has been issued, additional payment and premium of Rs. 60/- was recovered from insured. According to learned advocate Ms. Jani, it covers risk of four labourers not beyond it. If insured obtained insurance policy for four labourers and at the time of accident, 12 labourers were found how condition of insurance policy is violated, for that, there is no submission made by learned advocate Ms. Jani before this Court. There is no restriction in insurance policy including terms and conditions which direct insured not to travel beyond four labourers in truck. Jani before this Court. There is no restriction in insurance policy including terms and conditions which direct insured not to travel beyond four labourers in truck. There is no such terms and conditions and restriction for travelling of labourers in truck incorporate in insurance policy, which has been pointed out by learned advocate Ms. Jani before this Court. Such breach having more than labourers than prescribed means having insurance policy for limited labourer can not consider to be fundamental breach of insurance policy. At the most, insurance company can only say that as per terms and conditions and premium, their liability is upto four labourers, not beyond that but because of more than four labourers were travelling or engaged by owner that does not violates terms and conditions of insurance policy. 13. Learned advocate Ms. Jani relied upon decisions of Apex Court which are as under: National Insurance Co. Ltd v. Rattani and Ors reported in 2009 (2) SCC 75 , relevant head note is quoted as under: "Motor Vehicles Act, 1988 – Section 147 – Representative 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." The Apex Court has considered section 147 any persons covered as representative of owner of goods. The member of marriage party travelling in truck being goods vehicle held can not fall into above category. Therefore, this decision is also not applicable or helpful to contention raised by learned advocate Ms. Jani because it depends upon altogether different facts. In case of National Insurance Co. The member of marriage party travelling in truck being goods vehicle held can not fall into above category. Therefore, this decision is also not applicable or helpful to contention raised by learned advocate Ms. Jani because it depends upon altogether different facts. In case of National Insurance Co. Ltd v. Bommithi Subbhayamma and Ors reported in 2005 ACJ 721, relevant head note is quoted as under: "Motor Vehicles Act, 1988, section 147 (1)- Motor Insurance – Goods Vehicle – Passenger risk – Gratuitous passenger – Liability of insurance company – Death of gratuitous passenger in truck when it met with accident – Tribunal allowed compensation but exempted the insurance company from liability – High Court in appeal affixed liability on the insurance company – Whether the Insurance Company is liable – Held No, claimants entitled to recover awarded compensation from owner of vehicle ( 2004 ACJ 428 (SC) relied)." In above-referred decision, Apex Court has considered case of passengers travelling in goods vehicle and death of gratuitous passengers, liability of insurance company is considered whether insurance company is liable or not? Answer given by Apex Court "NO" but claimants entitled to recover awarded compensation from owner of vehicle. The aforesaid decision is also not applicable to facts of present case, because here vehicle is "Passenger vehicle" not "Goods Vehicle" and persons those who were travelling in passengers vehicle are labourers whose additional premium was paid by owner of vehicle and accepted by insurance company. Therefore, this decision is also not applicable. In case of National Insurance Co. Ltd v. Prema Devi and others reported in 2008 ACJ 1149 , relevant head note is quoted as under: "Motor Vehicles Act, 1988, section 147 (1) – Motor Insurance – Goods vehicle – Passenger risk – Gratuitous passenger – Liability of insurance company – Claimant travelling in a goods vehicle as a gratuitous passenger – She was not travelling as owner of goods or respective of owner of goods being transported in the vehicle – Insurance company seeks to avoid its liability on the ground that owner of vehicle had not taken policy for such passenger and there was no requirement under law for obtaining a policy covering such passenger – Whether insurance company is liable – Held: No; claimant may recover the compensation amount from owner of vehicle. ( 2007 ACJ 1043 (SC) relied)." Looking to head note of above referred decision where facts reflected that it was goods vehicle, question of passengers' risk/gratuitous passenger qua liability of insurance company has been examined and answer given by Apex Court that insurance company is not liable for gratuitous passenger when they were not travelling as owner of goods or representative of owner of goods being transported in vehicle. Therefore, this decision is not applicable to facts of this case, because here passenger vehicle is involved and risk of labourers covered by additional premium. Therefore, this decision is not applicable to facts of this case, because here passenger vehicle is involved and risk of labourers covered by additional premium. In case of Oriental Insurance Company Ltd v. Meena Variyal & Ors reported in 2007 (5) SCC 428 , relevant head note is quoted as under: "Motor Vehicles Act, 1988 – Sections 147 and 149 – Third party insurance – Persons covered under – Employee of insured person – When covered – Scope of words "any person" in Section 147 (1)(b) – Insurance Company's duty under Section 149 to satisfy award against insured – When arises – Held, insurance policy in terms of Section 147 is not intended to cover persons other than third party – Employees of the insured are not normally covered under the statutory insurance except in cases of a liability arising under the Workmen's Compensation Act, 1923 ("1923 Act") in respect of death or bodily injury to an employee engaged in driving the vehicle, or who serves as conductor or an employee who travels in vehicle of employer carrying goods, in case of goods carriage – Nor can Section 149(1) be used to enlarge the liability if it does not exist in terms of Section 147 – In a case where a person is not a third party within meaning of 1988 Act, insurance company can not be made automatically liable merely by purportedly resorting to ratio of Swaran Singh Case, (2004) 3 SCC 297 – In present case, V, a Regional Manager of the company that owned the car met his death in an accident while he was using the car given to him by the company for use – Tribunal proceeding on basis that V had been driving the car when it met with accident (though V's dependents claiming that another person, M had been driving the car and not V) – V, if covered by the statutory insurance – Held, whether V is treated as owner of the vehicle or an employee, he is not covered by the statutory insurance since V was not the driver, nor could V be understood as a workman coming within the 1923 Act otherwise – Only by entering into a special contract by the insured could such a person as V be brought under coverage – There being no such special contract, and V not being a "third party" appellant insurance company was not obliged under Section 149 to satisfy the award and then have recourse to the insured owner – High Court erred in directing insurance company to satisfy the award purportedly on the basis of Swaran Singh case without examining whether on facts, V was a "third party"." In aforesaid decision, there was no such special contract, which covered risk of persons claiming compensation and he was not third party but facts to present case, risk of four persons covered, those who were labourers and additional premium of Rs. 60/- received by insurance company while accepting liability towards four labourers. Therefore, this decision is also not applicable. 14. The above referred decisions of Apex Court are relating to gratuitous passengers and unauthorized passengers. In such cases, Apex Court has observed that when initially itself insurance company is not liable to pay any amount of compensation because their risk is not covered at all then direction can not be issued to insurance company to pay and recover from owner of vehicle. Here case is altogether different because it is not "Goods vehicle" but it is "Passengers vehicle" permitted having insurance of four labourers undisputedly receiving additional premium of Rs. 60/- from insured, so risk of four labourers are covered in insurance policy. It is also necessary to consider that in insurance policy, which labourers are covered, their names are not mentioned means unnamed labourers' risk covered in insurance policy. Therefore, owner allowed to travel more than four labourers in truck for loading wooden parts from one place to other, that can not consider to be breach as alleged by insurance company. 15. Learned advocate Ms. Jani placed on record compilation, Exh. 33 copy of FIR, Exh. 34 copy of panchnama, Exh. 63 copy of insurance policy covering note, Exh. 46 copy of deposition of Kaliben Punabhai, Exh. 47 copy of deposition of Arvindbhai Rupsingbhai Pateliya, Exh. 53 deposition of Gamjibhai Rupsingbhai Pateliya, Exh. 62 copy of deposition of branch manager of insurance company Mr. Subhash Duttatray Sharaf. 16. I have perused compilation produced by learned advocate Ms. Jani. The complaint filed by Gamjibhai Rupsingbhai Pateliya on 24-5-2001. In this complaint, complainant himself admitted that he was working as labourer and maintaining family. While doing labouring work of loading and unloading of wooden parts, other persons were also travelling as labourers in Passenger vehicle. From Village Piplod, one Shri Ahmad Sheth has informed to all labourers that they have to loading wooden parts from Machhelav and Ahemad Sheth was coming behind them on motor cycle. Shri Madhusinh Roopsinh Patel was driver at that time. The accident occurred because of additional wheel of rear side of truck separated i.e. how truck has turned turtled in ditch in gutter. The persons have been received injuries and due to that one Shri Punabhai was died. The panchnama suggested condition of vehicle. In insurance policy Rs. Shri Madhusinh Roopsinh Patel was driver at that time. The accident occurred because of additional wheel of rear side of truck separated i.e. how truck has turned turtled in ditch in gutter. The persons have been received injuries and due to that one Shri Punabhai was died. The panchnama suggested condition of vehicle. In insurance policy Rs. 60/- is paid for additional premium covering risk of labourers but one fact is very important that in policy where endorsement has been made, quoted as under: "Use only for carriage of goods within the meaning of Motor Vehicle Act, 1988. The policy does not cover: 1. Use for organised racing, pace making reliability trial or speed testing. 2. Use whilst drawing, trailer except the towing (other than for reward) or any one disabled mechanically propelled vehicle. 3. Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of Workmen's Compensation Act. Any person including the incurred provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such licence. Provided also that a person holding an effective learner's licence may also drive the vehicle when not used for transport of goods at the time of the accident and such a person satisfies the requirement of rule no. 3 of the Central Motor Vehicle Rule 1989." 17. The aforesaid endorsement made in insurance policy covering risk of six labourers/employee other than driver. Even before this Court, contention raised by learned advocate Ms. Jani to the effect that risk of four labourers are covered in additional premium of Rs. 60/- but not covering risk of six labourers. No doubt this contention specifically not raised before claims Tribunal by appellant insurance company that in insurance policy only risk of four labourers are covered. This endorsement on policy suggests risk of not exceeding six in number labourers/employee are covered other than driver. This Court has also perused evidence of claimants and cross examination of claimants. None has admitted that they were travelling as an unauthorized passengers on the date of accident. On the contrary, by evidence of each claimant, it was proved before claims Tribunal that they were travelling as labourers on date of accident for loading and unloading wooden parts. Therefore, contention raised by learned advocate Ms. None has admitted that they were travelling as an unauthorized passengers on the date of accident. On the contrary, by evidence of each claimant, it was proved before claims Tribunal that they were travelling as labourers on date of accident for loading and unloading wooden parts. Therefore, contention raised by learned advocate Ms. Jani that risk of four labourers are covered can not be accepted considering endorsement as referred in insurance policy. 18. According to my opinion, terms and conditions of insurance policy is not at all violated and that fact is not proved by insurance company while leading evidence before claims Tribunal. 19. The view taken by Madhya Pradesh High Court in case of National Insurance Co. Ltd v. Kans Ram and Ors reported in 2002 ACJ 1177 , relevant observation made in para 9 is quoted as under: "9. Another facet of the argument is liability with respect to labourers more than six in number carried by the vehicle. This contention is also covered by Apex Court decision in B.V. Nagaraju v. Oriental Insurance Co. Ltd., 1996 ACJ 1178 (SC), therefore, appellant can not escape its responsibility on this aspect of the matter also." 20. In case of United India Insurance Co. Ltd v. Shekamma and Ors reported in 1995 ACJ 86, Andhra Pradesh High Court observed in para 8 to 10, which are quoted as under: "8. The next submission of Mr. S. Hanumaiah is that clause (a) of subsection (2) of goods vehicle from carrying more than six employees, excluding the driver and thus, the vehicle in question was used for a purpose not allowed by the permit. I find no force in this submission for reasons more than one. Clause (a) of sub-section (2) of section 95 limits the liability of an insurer in the case of goods vehicle to a sum of Rs. 1,50,000/-. This limit includes its liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to employees not exceeding six in number, excluding the driver, being carried in the vehicle. It does not deal with conditions of permit in respect of a goods vehicle. Nor does it prohibit a goods vehicle from carrying more than six employees, excluding the driver. It does not deal with conditions of permit in respect of a goods vehicle. Nor does it prohibit a goods vehicle from carrying more than six employees, excluding the driver. In fact, sub section (2) of section 56 of the Act and sub Rule (v) of rule 213 of the A.P. Motor Vehicles Rules 1964, deal with the conditions to be attached to permit in respect of a goods vehicle. Sub section (2) of section 56 empowers the Regional Transport Authority to attach one or more of the nine conditions specified therein to a goods vehicle. None of the said nine conditions prohibits a goods vehicle from carrying more than six employees, excluding the driver. Sub rule (v) of rule 213 of the A.P. Motor Vehicles Rules, 1964, employers the concerned transport authority to attach the following additional condition to a permit granted in respect of a goods vehicle: "Not more than six persons in all in addition to the driver shall be carried in the vehicle except with the person of the transport authority." From the above, it is clear that more than six persons may be carried in a goods vehicle with the permission of the concerned transport authority. In the present case, the appellant has not chosen to adduce any evidence to prove that a condition was attached to the permit not to carry more than six employees and there was no permission from concerned transport authority to carry more than six employees. Therefore, I find it difficult to accept the contention that the vehicle had been used for a purpose not allowed by the permit. It is accordingly rejected. 9. Then remains the contention that the insured had committed breach of conditions of contract of insurance. In this context, Mr. Hanumaiah draws my attention to the following clauses in the policy of insurance: "limitations as to use: Use only under a public carrier's permit within the meaning of the Motor Vehicles Act, 1939. The policy does not cover: (1) to (2) XXX XXX XXX (3) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of the Workmen's Compensation Act, 1923." and submits that they are the conditions of contract of insurance and the insured had committed a breach of the same. I am not impressed with this argument either. I am not impressed with this argument either. As already noticed, the appellant had issued the policy of insurance, with his eyes wide open, for a period of one year commencing from 8-5-1986 and ending with 7-5-1987, though the insured had only a temporary permit for a period of four months, as on the date of contract of insurance. It is not in dispute that the appellant had collected premium payable for one year. It is also note in dispute that the insured had a valid permit as on the date of contract of insurance. In view of this, it is already held by me that this defence is not available to the appellant in view of the provisions of sub section (2) of section 96 of the Act. Therefore, it has to be considered whether it would be open to the insurer to avoid its liability on the ground of violation of the terms of the policy of insurance in Ragunath Eknath Hivale v. Shardabai Karbhari Kale, 1986 ACJ 460 (Bombay), Sawant, J. speaking for a Division Bench observed at page 463: "The insurer can avoid its liability only if the conditions specified in section 96 (2) are satisfied, and not otherwise. The contract between the insurer and the insured may permit the insurer to avoid its liability under various circumstances do not satisfy the provisions of section 96(2), the insurer can not escape its liability for the third party risks. The statute recognises no other condition for an insurer to escape its liability except those given in section 96(2) whatever, the terms of the contract between the insurer and the insured. The terms of the contract between the insurer and the insured determining their rights and liability towards each other are not and should not be confused with the statutory liability of the insurer for the third party risks. If there is a breach of the contract on the part of the insured, the insurer may proceed against the insured. As far as the third party risks are concerned, the liability being statutory, it can not be overridden by the terms of the contract of insurance, between parties." Same is the view taken by the Madras High Court in National Insurance Co. Ltd v. T. Elumalia, 1990 ACJ 426 (Madras), wherein Padmini Jesudurai, J. held at page 430: "... As far as the third party risks are concerned, the liability being statutory, it can not be overridden by the terms of the contract of insurance, between parties." Same is the view taken by the Madras High Court in National Insurance Co. Ltd v. T. Elumalia, 1990 ACJ 426 (Madras), wherein Padmini Jesudurai, J. held at page 430: "... The insurer is not entitled to take a defence, which is not specified in section 96(2) of the Act. These provisions have to be construed strictly. As stated earlier, it is not the breach of any condition of the policy of insurance, that would provide the insurer a defence under section 96(2) of the Act. The policy of insurance may permit the insurer to avoid its liability under various circumstances. However, as against the liability of the insurer to third parties, the terms of the policy of insurance are subject to the provisions of section 96(2) of the Act. If there is a breach of the contract on the part of the insured the insurer could proceed against the insured, but as far as the third party risks are concerned, the liability having been created by the statute, can not be overridden by the terms of the contract of insurance between the parties. I am in respectful agreement with the above view. Therefore, it must be held that the appellant cannot escape its liability and perhaps the only course open to it is to proceed against the insured. 10. As already noticed, there is no evidence in the present case that a condition was attached to the permit, prohibiting carrying of more than six employees and there was no permission from the concerned transport authority to carry more than six employees excluding the driver. Thus, I find no substance in the contention of the learned counsel for the appellant that the insured had committed breach of conditions of contract of insurance by carrying more than sic employees. Even otherwise, this plea is not available to the appellant in view of the decision in Ragunath's case, 1990 ACJ 539 (AP). In Ragunath's case similar contention was rejected by Sawant, J. in the following terms: "... A breach of the condition of the permit is not the same thing as a breach of the purpose for which it is issued. In Ragunath's case similar contention was rejected by Sawant, J. in the following terms: "... A breach of the condition of the permit is not the same thing as a breach of the purpose for which it is issued. There was, therefore, no contravention either of clause (b)(i)(a) or of (b)(i)(c) and can be pressed into service on behalf of the insurance company." 21. In case of Pradeep Kumar Sing Deo v. Drapadi Verasagar and ors reported in 1990 ACJ 392 , relevant observation made by Orissa High Court in para 5 and 6, which are quoted as under: "5. In my opinion, the Tribunal has completely misdirected itself and has taken an erroneous view in discharging the liability of the insurer on that account. The intent and purpose of clause (a) of section 95 (2) is only to limit the extent of liability of the insurer which is fixed to a particular number of persons. If larger number of employees are carried in a goods vehicle, then the liability of the insurer will be confined, besides the monetary limit, to the death of or bodily injury suffered by such number of employees which is fixed in the statute or agreement. For example, if the statute limits the liability of the insurance company to six employees and ten persons travelling in a vehicle die or suffer bodily injuries as a result of an accident, then the liability of the insurer will be confined with respect to six persons only, the compensation not exceeding the maximum amount prescribed in that regard. In that view of the matter, the insurance company is to indemnify the insured, namely the appellant to the extent, i.e., the extent of compensation payable to the claimants under the provisions of the Workmen's Compensation Act. The responsibility for payment of the additional amount of compensation would remain with the appellant. The insurer can not escape its liability for the reason that the vehicle had carried more number of employees. 6. I am supported in my view by a decision of this Court in the Orissa Co-Op. Insurance Society Ltd v. Sarat Chandra Champati, 1975 ACJ 196 (Orissa), wherein it has been held that the liability of the insurance company to pay compensation is limited only to the extent payable under the Workmen's Compensation Act. In the case of Orissa State Road Trans. Corpn. Insurance Society Ltd v. Sarat Chandra Champati, 1975 ACJ 196 (Orissa), wherein it has been held that the liability of the insurance company to pay compensation is limited only to the extent payable under the Workmen's Compensation Act. In the case of Orissa State Road Trans. Corpn. v. Shankar Sahu, 1989 ACJ 867 (Orissa), sitting in a Division Bench, I have held that it is open to a claimant to approach either of the forums under the Workmen's Compensation Act or the Motor Vehicles Act." 22. In case of B.V. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Office, Hassan reported in AIR 1996 SC 2054 , Apex Court held that alleged breach of carrying humans in goods' vehicle more than the number permitted in terms of insurance policy is not so fundamental a breach so as to afford to the insurer to eschew liability altogether. The exclusion term of insurance policy read down to serve main purpose of policy. The relevant discussion in para 5 having same terms and policy which has been produced in respect to present case by insurance company. Therefore, para 5 to 8 are quoted as under: "5. The term of the Insurance Policy, inter alia, provides as follows : "Limitations as to use : Only for the carriage of goods within the meaning of the Motor Vehicles Act, 1988. The policy does not cover - (1) Use for organised racing, pace-making reliability trial or speed testing. (2) Use whilst drawing a trailer except towing of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in numbers coming under the purview of W.C. Act, 1923." 6. The policy does not cover - (1) Use for organised racing, pace-making reliability trial or speed testing. (2) Use whilst drawing a trailer except towing of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in numbers coming under the purview of W.C. Act, 1923." 6. Learned counsel for the appellant, in support of this appeal, strongly relied on Skandia's case ( AIR 1987 SC 1184 ) (supra), making a fervent appeal that the terms of the policy referred to, should be read down to carry out the main purposes of the policy as the presence of 9 persons (when up to 6 were permissible), irrespective of their being employees or not, had not contributed in any manner to the occurring of the accident as also when the claim did not relate to any injuries to those 9 persons (who were owners of the goods loaded) or any loss incurred by them; the claim pristinely relating to the damage caused to the vehicle insured, which could not have been denied in the facts and the circumstances. Strong reliance, in support, was sought from the reasoning of the State Commission which had in so many words said : ".....Even for the sake of argument, that 9 persons travelling in the vehicle were passengers, it cannot be a ground for Insurance Company to repudiate the contract as the fact of their being passengers or coolies does not make any difference to the risk involved. These persons were in no way concerned with the cause of the accident nor have they contributed to the risk in respect of the loss caused to the vehicle. The complainant has not claimed any compensation in respect of his liability to the persons travelling in the vehicle." 7. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is poser, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. In Skandie's case (AIR 1987) SC 1184) this Court paved the way towards reading down the contractual Clause by observing as follows : "....When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their defendants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main' purpose' of the provision so that the 'exclusion clause' highlighted earlier. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carter's "Breach of Contract" vide paragraph 251. To quote : Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promiser's contractual obligations. For example, in Glynn v. Margetson and Co. To quote : Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promiser's contractual obligations. For example, in Glynn v. Margetson and Co. 1893 AC 351 (357), Lord Halsbury, L.C. stated : It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard.. as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledge when the doctrine was rejected by the House of Lords in Suissee Atlantique Societe d' Armement Maritime S.A. v. N.V. Rot-terdamsche Kolen Centrale, (1967) 1 AC 361 . Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract." 8. The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandia's case ( AIR 1987 SC 1184 ), the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle, which we hereby do." 23. From entire award, there is no contention raised by insurance company before claims Tribunal in written statement that insurance policy covered risk of only four labourers not beyond it. It is also not proved by insurance company before claims Tribunal that beyond four persons, those who are labourers and other persons are not labourer. From entire award, there is no contention raised by insurance company before claims Tribunal in written statement that insurance policy covered risk of only four labourers not beyond it. It is also not proved by insurance company before claims Tribunal that beyond four persons, those who are labourers and other persons are not labourer. For which, claimants giving evidence before claims Tribunal saying that they are labourers working with owner of vehicle at the time of accident. Even in FIR as well as Panchnama also there was no such averment that rest of persons are not working as labourers means 11 to 12 persons those who were travelling at the time of accident they all were labourers, none of person was an unauthorized passengers travelling in truck when accident is occurred because there is no positive evidence produced by appellant insurance company before claims Tribunal. So now only contention was raised before claims Tribunal by appellant that more than prescribed limit means insurance obtained by owner labourers were travelling at the time of accident. It reflect limited liability of insurance company upto four persons but it can not consider to be breach of condition of insurance policy because there was no condition incorporate in policy that owner should not allow to travel beyond four labourers. Therefore, contention raised by learned advocate Ms. Jani can not be accepted. The decisions which have been relied by learned advocate Ms. Jani are all in respect to gratuitous passengers, unauthorized passengers and liability upto four unnamed labourers in policy, they can not consider to be unauthorized passengers or unauthorized persons or gratuitous persons. 24. Therefore, decisions relied by learned advocate Ms. Jani is not applicable to facts of this case. In this case at least insurance company has accepted liability for payment of compensation in respect to four labourers as an additional premium accepted by insurance company from owner of vehicle. 25. Before this Court, compilation has been produced on record where at page 29 Exh. 62 in MACP no. 1428 of 2001 on behalf of appellant insurance company one branch manager Mr. Subhash Duttatray Sharaf was examined who was also cross examined by advocate of claimants. 25. Before this Court, compilation has been produced on record where at page 29 Exh. 62 in MACP no. 1428 of 2001 on behalf of appellant insurance company one branch manager Mr. Subhash Duttatray Sharaf was examined who was also cross examined by advocate of claimants. No doubt, his evidence has been totally ignored by claims Tribunal but his evidence is not in any manner helpful to appellant insurance company because evidence of branch manager remained to facts which were on record and there is no other evidence or facts has been developed or stated by branch manager in his evidence. One fact has been stated in para 4 means deposed by branch manager that on the date of accident, more than 11 persons were travelling, therefore, directly policy has been breached by owner only on that ground, insurance company is not liable to pay compensation. Except that, there is no other additional facts or legal aspect has been discussed or deposed by branch manager before claims Tribunal. After perusing judgment and award passed by claims Tribunal, a moment advocate of insurance company realised that Exh. 62 evidence of branch manager has been totally ignored and not discussed and no reasoning has been given then immediate reaction would be to approach claims Tribunal by filing necessary application to bring to his notice that this facts has been totally ignored by claims Tribunal, then claims Tribunal can consider such application and to pass appropriate orders after hearing respective parties but before this Court such contention is not helpful to appellant insurance company because this Court has to consider record of claims Tribunal being conclusive, even though, Exh. 62 has been produced on record with compilation by advocate of appellant. No such application is preferred by appellant insurance company before claims Tribunal to point out or to bring to his notice that this evidence has been remained unattended by claims Tribunal. 26. The view taken in case of Md. Rafique v. State of West Bengal reported in 2008 (15) SCALE 15 , Apex Court has considered that if 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 attention of very judges who have made record. That is the only way to have the record corrected. 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 appellant to contend before higher forum to contrary. Relevant para 5 is quoted 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 v. Ramdas Shrinivas Nayak ( 1982 (2) SCC 463 ). In a decision Bhavnagar University v. 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 matter 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 matter 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 v. Mohan Thedani ( 2003 6 SCC 595 )" 27. In view of aforesaid recent decision of Apex Court, appellant can approach to claims Tribunal as Exh. 62 remained unattended, but no such application is preferred, this Court can not consider contention raised by learned advocate Ms. Jani relied upon Exh. 62. However, this Court has considered evidence of branch manager. One contention is raised before this Court that in F.A nos. 3119 to 3123 of 2006 with C.A. nos. 62 remained unattended, but no such application is preferred, this Court can not consider contention raised by learned advocate Ms. Jani relied upon Exh. 62. However, this Court has considered evidence of branch manager. One contention is raised before this Court that in F.A nos. 3119 to 3123 of 2006 with C.A. nos. 10023 of 2006 to 10027 of 2006, this Court has admitted all appeals and interim relief is also granted and appellant insurance company is deposited Rs. 10,75,241/- with objection. It is necessary to note that this all awards passed by claims Tribunal arising from same accident being an ex-parte award. Therefore, this Court has admitted appeals but this award are by party after considering submissions made by respective parties, claims Tribunal has examined claim petitions on merits, therefore, this Court can consider merits of award and ignored appeals admitted by this Court against ex-parte award. So both cases are different and different decisions have been there, therefore, this Court has considered merits of this matter after considering submission made by both learned advocates. 28. Learned advocate Mr. Shah submitted that Indian Motor Tarriff 16/70 not produced before this Court and he relied upon one decision of this Court in case of New India Assurance Co. Ltd v. Arvindbhai Motibhai Pagi and Ors reported in 2008 (1) GLH 763 . Relevant para 5 is quoted as under: "5. Admittedly, the policy in question in the facts of the present case is not an "Act only policy" or "a policy for Act Liability only". Instead it clearly and expressly mentions "endorsement nos.16, 23, 37" as annexed and the annexure, inter alia, contains above clauses. Therefore, the insurance company has undertaken additional liability by charging additional premium and such liability would depend upon application and interpretation of the conditions of policy. The aforesaid clause, endorsement no. IMT 16, attaching to and forming part of the policy for covering legal liability of the insured in connection with operation and/or maintenance and/or unloading of motor vehicle is in a printed form which is not fully filled up but duly signed by the constituted attorney of the appellant. The aforesaid clause, endorsement no. IMT 16, attaching to and forming part of the policy for covering legal liability of the insured in connection with operation and/or maintenance and/or unloading of motor vehicle is in a printed form which is not fully filled up but duly signed by the constituted attorney of the appellant. Reading of relevant three paragraphs of the annexure as reproduced herein above, leaves no room for doubting that the endorsement was intended to indemnify the insured against his legal liability under the Workmen's Compensation Act, 1923 as well as at common law in respect of personal injury to any person employed in loading or unloading while in service of the insured. The third paragraph on which maximum emphasis was laid by learned counsel only clarifies the necessity of certifying, at the expiry of the period of insurance, the maximum number of drivers, cleaners, conductors or persons employed in loading, at any one time during the period in connection with which the insurance was effective. Therefore, it cannot derogate from the previous two paragraphs by which the insurer had undertaken to indemnify the insured against his legal liability. In view of these special and specific conditions of the policy, the aforesaid judgment of the Supreme Court in National Insurance Co. Ltd. v. Prembai Patel and Others (supra) has no application in the facts of the case." 29. The fact remained as it is that at the time when accident occurred more than four labourers were travelling in truck. In respect to present common award, one person Shri Punabhai died and two labourers were injured, so it is not more than four persons as covered by risk, accepted by insurance company because unnamed person has been there in insurance policy that risk is only covered by A or B or C. Therefore, risk of unnamed labourers is covered upto 4 persons, in fact of this case, risk of three persons were there, one labourer who died, and others two, who have received injuries. Therefore, considering facts of this case it is less than four labourers, whose risk are covered. Therefore, contention raised by learned advocate Ms. Therefore, considering facts of this case it is less than four labourers, whose risk are covered. Therefore, contention raised by learned advocate Ms. Jani can not be accepted because in respect to other, ex parte award is there, so still it require by party and that can be taken care by claims Tribunal as and when such contention is raised but considering facts of this case risk of four persons covered as admitted by advocate of insurance company considering additional premium of Rs. 60/- (per person Rs. 15/-) and in this case only three labourers are injured including one died. Therefore, risk of these three persons are covered as per insurance policy because in respect to other cases which has been decided ex parte such question has not been decided by claims Tribunal on merits. Naturally, that award can not be binding to appellant insurance company and still it is to be decided by this Court because appeals are admitted by this Court. 30. After considering submissions made by both learned advocates, according to my opinion, contention which are raised by learned advocate Ms. Jani about breach of policy can not be accepted and decisions which are relied by her as referred above are pertaining to Goods vehicle in respect to gratuitous passengers but facts of this case is that truck is considered in appeal memo as Passengers vehicle and at the time of accident all labourers were travelling, that fact is also not disproved by appellant insurance company that other than labourers were travelling, at the time of accident, therefore, contention raised by learned advocate Ms. Jani can not be accepted. 31. The contention raised by learned advocate Ms. Jani that claim petition arise from same accident, where claims Tribunal has decided ex parte against insurance company, against which appeal preferred by insurance company has been admitted by this Court on 29-8-2009. I have considered her contention but this Court can differ it because in facts of present case, by party award is passed after considering contention raised by insurance company. Therefore, order passed in FA no. 3119 of 2006 to 3123 of 2006 dated 29-8-2006 is not binding to this Court. Not only that it apply to different facts and not having identical case and situation. The both appeals are based on different facts one merits and others ex party, therefore, contention raised by learned advocate Ms. Therefore, order passed in FA no. 3119 of 2006 to 3123 of 2006 dated 29-8-2006 is not binding to this Court. Not only that it apply to different facts and not having identical case and situation. The both appeals are based on different facts one merits and others ex party, therefore, contention raised by learned advocate Ms. Jani can not be accepted. 32. The claims Tribunal has rightly considered evidence on record subject to Exh. 62, which has not been considered for that it is open for appellant insurance company to take appropriate steps if so advice. Therefore, no error apparently found from record which committed by claims Tribunal, Godhara, therefore, no interference would require by this Court. 33. Accordingly, there is no substance in appeals, present appeals are dismissed. Today, first appeals are dismissed, therefore, civil application nos. 8536, 8537 and 8538 of 2009 are also dismissed no order as to costs. Appeals dismissed.