JUDGMENT : H.K. Rathod, J. Heard learned Advocate Mr. Vibhuti Nanavati for appellant and learned Advocate Mr. Trivedi for respondents claimants. 2. By filing these appeals, appellant insurance company has challenged award made by claims tribunal, Gondal in claim petition no. 878 of 1989 and 879 of 1989 dated 29th March, 2001 Exh. 71. In claim petition No. 878/89, claims tribunal awarded Rs.77,700.00 and in claim petition no. 879/89, claims tribunal awarded Rs.30,500.00 with 9 per cent interest in favour of claimants, to be recovered from opponents no. 1, 2 and 5 and opponents no. 3 and 4 are not held liable to pay any compensation. Therefore, appellant insurance company is held liable to pay amount of compensation with 9 per cent interest and that has been objected by appellant insurance company by filing present appeals. 3. Learned Advocate Mr. Nanavati for appellant insurance company has raised contention that judgment of claims tribunal is directly bye-passing Supreme Court decision in Smt. Mallawwa v. Oriental Insurance Co. Ltd. 1994 ACJ 740 and 1981 ACJ 170 and 1999 ACJ 1 (SC). He further submitted that accident occurred on 24th March, 1986, therefore, rights of parties will be governed under MV Act, 1939, therefore, claims tribunal will have to determine rights and amount of compensation while keeping in view provisions of section 95 sub section (2) of MV Act, 1939. He submitted that it is clear that claimants were travelling in tractor as passengers and since they travelled as passengers, in view of apex court decision in case of Smt. Mallawwa, no person can travel in a goods vehicle. He submitted that if it is taken that persons were travelling as gratuitous passengers, even then, by virtue of judgment reported in 1979 GLR p. 831 in case of Ambabhai, gratuitous passenger is not entitled to any compensation as per Full Bench decision of this Court. As per his submissions, claims tribunal has not kept these aspects in mind while deciding claim petitions. He further submitted that claims tribunal has erred in not properly appreciating fact that vehicle was plied in contravention of conditions of policy. He submitted that ratio of decision in Smt. Mallawwa's case is that no person can travel in a goods vehicle and claims tribunal relying upon decision in 2000 ACJ 451 inter alia holding that if passengers are carried without knowledge of owner, insurance company is liable. He submitted that ratio of decision in Smt. Mallawwa's case is that no person can travel in a goods vehicle and claims tribunal relying upon decision in 2000 ACJ 451 inter alia holding that if passengers are carried without knowledge of owner, insurance company is liable. As per his submission, said decision cannot be relied on in view of apex court decision and claims tribunal has been too specious to brush aside apex court decision and other decisions of High Court. 4. Learned Advocate Mr. Trivedi appearing for claimants in both appeals submitted that driver has committed lapse by allowing passengers to travel in a goods vehicle. He submitted that insurance company has to prove that these passengers were travelling with consent of owner but that fact has not been proved by insurance company before claims tribunal by producing evidence to that effect and, therefore, insurance company has been rightly held liable to pay compensation to claimants by indemnifying owner of vehicle. He relied upon apex court decision in case of Sohanlal Passi v. P. Sesh Reddy, 1997(2) GLR 1093 . He also relied upon decision of this Court in case of New India Assurance Company Ltd. v. Manchhiben reported in : 1999(2) GLR 1753 : 1999(4) GCD 3377 and submitted that this court considered case of a driver of goods vehicle carrying passengers for hire and it was held that it is for insurance company to establish by producing evidence that passengers carried were under instructions and knowledge of insured. If insured had no knowledge of driver carrying passengers on hire, general defences of insurance company relating to income of deceased and rate of interest cannot be taken in appeal. 5. Learned Advocate Mr. Vibhuti Nanavati for appellant insurance company relied upon decision of this Court in case of United India Insurance Co. Ltd. v. Bhikhaji Dhanjisha Variyava reported in 2000 GLHEL 213334 and submitted that in said decision, truck fell down in the ditch and death of two persons had occurred. Deceased were carrying some machinery in truck. Deceased paid hire charges to owner of truck and tribunal made an award of Rs.65000.00 which was under challenge in appeal before this court and this court held that there breach of conditions of policy. Policy was not permitting use of goods vehicle for conveyance of passengers for hire or reward. Deceased were carrying some machinery in truck. Deceased paid hire charges to owner of truck and tribunal made an award of Rs.65000.00 which was under challenge in appeal before this court and this court held that there breach of conditions of policy. Policy was not permitting use of goods vehicle for conveyance of passengers for hire or reward. Truck loaded with sand was not meant for carrying passengers and award made by claims tribunal was set aside by allowing appeal. He also relied upon decision of this Court in Oriental Insurance Co. Ltd. v. Tulsiben Panalal Joshi, 2001 (1) GLH 237 and submitted that there was condition in policy regarding limitation as to use. Specific stipulation in policy that policy will not cover use for carrying passengers in vehicles except employees. It was held that there was breach of such condition and so insurance company cannot be saddled with liability. 6. I have considered submissions made by learned Advocates for parties. I have also perused impugned award made by claims tribunal. I have also considered observations made by claims tribunal while deciding issue of liability. In para 21 of award, claims tribunal observed as under: "21. The opponent No. 1 is the driver of the tractor involved in the accident, the opponent No. 2 is the owner of the tractor involved in the accident. The opponents no. 3 and 4 are not owner of the tractor. It appears that opponents No. 3 and 4 have been wrongly joined as parties to the claim petition. The opponent No. 5 is the insurer of the tractor involved in the accident. Learned Advocate Mr. LC Sheth has not been able to show that how the opponents No. 3&4 are liable to pay compensation to the applicants for the injuries sustained by the applicant in the vehicular accident. Therefore, it is hereby held that the opponents No. 3&4 are not liable to pay any compensation for the injuries sustained by them in the vehicular accident. Learned Advocate Smt. HJ Dave for the Insurance Co. has submitted written arguments at Exh. 64 wherein it is mainly contended that applicants were travelling illegally and unauthorisedly in the tractor which is not meant for carrying the passengers, therefore, Insurance Co. can disclaim its liability to pay compensation. Learned Advocate Smt. HJ Dave for the Insurance Co. has submitted written arguments at Exh. 64 wherein it is mainly contended that applicants were travelling illegally and unauthorisedly in the tractor which is not meant for carrying the passengers, therefore, Insurance Co. can disclaim its liability to pay compensation. In support of said contention, she has relied upon AIR 1999 SC 589 , 1994 ACJ page 740, 1981 ACJ 107 . In all the above three decisions, it is held that under the old Act, a person travelling in the goods vehicle with or without goods could not claim compensation from the Insurance Co. Learned Advocate Mr. L.C. Sheth has relied upon a decision of our own High Court, reported in 2000 ACJ 451 wherein it is held that if owner of the vehicle had not permitted or authorised driver to carry passengers for higher or reward and if the owner had not consented to the action of the driver, then, the insurance Co. could not disclaim its liability to pay compensation to the claimants. In other words, if the driver had allowed the passengers to travel in the goods vehicle without knowledge of the owner, then, Insurance Co. is liable to pay compensation to the claimants i.e. to say that Insurance Company is liable to indemnify the owner of the vehicle. Therefore, the opponents No. 1, 2 & 5 being driver, owner and insurer of the tractor/trailor involved in the accident are jointly and severally liable to pay amount of compensation with interest and cost to the applicants and it will be open for the claimants to recover the entire amount of compensation with interest and cost payable to him from any of the opponents no. 1, 2 and 5. In the present case, there is no evidence that the opponent no. 2 who happens to be owner of the tractor had permitted or authorised the driver to carry passengers for higher or reward or had consented to the action of the driver. Therefore, decision relied upon by Smt. H.J. Dave delivered in the case of New India Assurance Co. Ltd. v. Manjulaben is squarely applicable to the facts of the case and therefore, Insurance Co. is held liable to pay compensation to the applicant. Therefore, driver, owner and insurer of the tractor are liable to pay amount of compensation. Issue No. 4 is decided accordingly." 7. Ltd. v. Manjulaben is squarely applicable to the facts of the case and therefore, Insurance Co. is held liable to pay compensation to the applicant. Therefore, driver, owner and insurer of the tractor are liable to pay amount of compensation. Issue No. 4 is decided accordingly." 7. Thus, claims tribunal has relied upon decision of this court reported in 2000 ACJ 451 wherein it has been held that if owner of vehicle had not permitted or authorised driver to carry passengers for higher or reward and if owner had not consented to the action of driver, then, insurance Co. could not disclaim its liability to pay compensation to claimants. Considering that decision and considering that fact has not been proved by insurance company by producing any evidence to that effect before claims tribunal, held insurance company liable to pay compensation to claimants. Question which has been examined by claims tribunal is altogether on different angle. Question is that in goods vehicle, if passengers are allowed to travel prior to amendment made in MV Act on 14th November, then Insurance Company is liable or not? Looking to date of accident 24th March, 1986, this is an accident prior to amendment and prior to coming new Act into force. Risk of passenger in capacity of owner of goods has been covered after amendment made on 14th November, 1994 under section 147 of MV Act, 1988 and policy which has been issued by insurance company to insured in respect of goods vehicle, whether it is permissible to travel or carry passenger either with goods or without goods in goods vehicle or not, there is clear terms and conditions incorporated in insurance policy that in goods vehicle, no passenger can be carried either with goods or without goods prior to 14th November, 1994 and this aspect has been examined by Division Bench of this court in United India Insurance Co. Ltd. v. Bhikhaji Dhanjisha Variyava, reported in 2000(0) GLHEL-HC 213334 wherein Division Bench of this Court considered aforesaid two decisions of apex court in case of Mallwwa. Relevant discussion made in para 6 to 11 is reproduced as under: "6. The Tribunal, after considering the evidence on record, namely oral and documentary and also considering the provisions of section 59 of the Motor Vehicles Act, came to the conclusion that the deceased was not gratuitous passengers. Relevant discussion made in para 6 to 11 is reproduced as under: "6. The Tribunal, after considering the evidence on record, namely oral and documentary and also considering the provisions of section 59 of the Motor Vehicles Act, came to the conclusion that the deceased was not gratuitous passengers. If it was a permit for public carrier purpose, there was no necessity nor there is any column in the permit that negative clause should have been introduced and incorporated that the passengers are not to be carried in public carrier. Consequently, it has to be accepted that the permit was issued for public carrier. 7. We have also examined the insurance policy. There seems to be prima facie breach of the terms and conditions of the insurance policy. It inter alia provides regarding limitations as to use which runs as under : "use only under the public carriers permit within the meaning of the Motor Vehicles Act, 1939." 8. This is satisfied in the instant case because the permit within the meaning of the Motor Vehicles Act, 1939 has been shown to us. The policy further recites that it does not cover (1) use of organised pace making reliability trial or speed testing; (2) use while driving trailer except for towing and other than for reward and of any one disabled mechanically propelled vehicle (3) use of conveyance of passengers for hire or reward. 9. This clause 3 of limitations as to the use clearly prohibits use of public carrier for conveyance of passengers for hire or reward. The policy was in respect of the goods vehicle namely offending truck which was insured with the appellant. It was this condition in the insurance policy which was breached and consequently if the passengers were carried for hire or reward, there was obvious breach of clause 3 of the limits as to use of the goods vehicle viz. public carrier. Consequently, if the vehicle was used in violation and breach of clause 3 of limits as to use, the liability of the insurance company stands exonerated. 10. Learned counsel for the respondent has urged that the vehicle was hired for carrying machine. public carrier. Consequently, if the vehicle was used in violation and breach of clause 3 of limits as to use, the liability of the insurance company stands exonerated. 10. Learned counsel for the respondent has urged that the vehicle was hired for carrying machine. He also urged that the fare and freight for the owner of the machine and for carrying machine namely engine of the truck for repairs to Bombay was paid to the owner of the truck, hence, the deceased was not a gratuitous passenger. We proceed on the assumption that the fare and freight was paid to the owner of the truck. It is in evidence that the truck was loaded with sand. Consequently, it is difficult to believe that the truck was hired only for the purpose of carrying engine of the motor vehicle for repairs to Bombay. On the other hand, it emerges from the evidence on record that the truck was loaded with sand weighing approximately about 9 tons and on the way, defective engine of motor vehicle owned by the deceased was loaded in the truck and it was to be carried to Bombay. Consequently, it was not a case where the truck was hired only for the purpose of carrying defective engine of motor vehicle. It is also in the evidence that the deceased was also travelling in the offending vehicle. The position will, therefore, not be changed whether the deceased was travelling as owner of the engine of motor vehicle or he was travelling with any of his own goods. He will be the passenger travelling with his own goods. It is at this juncture that the Supreme Court's verdict in Smt. Mallawwa etc. v. Oriental Insurance Co. (supra) can be pressed in service where the apex court has, inter alia, laid down that it is immaterial that the passenger was travelling in the goods vehicle along with his goods or not and also whether he has paid the fare and freight or not. The test to determine whether the vehicle in question at the time of accident was goods vehicle or the vehicle meant for carrying of passengers was specifically laid down by the apex court in this case. The apex court noticed contradictory views of various High Courts in the country on the point and approving the view taken by the Orissa High Court in New India Assurance Co. The apex court noticed contradictory views of various High Courts in the country on the point and approving the view taken by the Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 , laid down correct test to determine whether the vehicle was used as goods vehicle or it was a vehicle meant for carrying passengers, section 95 of the Motor Vehicles Act which finds reference in the judgment of the tribunal was also considered by the apex court. It was laid down that for the purpose of section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers have carried if the vehicle was of that class. Keeping in mind the classification of vehicles by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions at that vehicle for carrying passengers for hire or reward. For the purpose of construing a provisions like proviso (ii) to section 95(1)(b), the correct test to determine whether a passenger was carried for hire or reward would be whether there has been a systematic carrying of passengers Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. 11. For applying these tests, learned counsel for the respondents has urged that there is no evidence that the truck in question was used only once for carrying of passengers. However, it was difficult for the appellant to lead evidence that the truck was generally used for carriage of passengers especially in violation of the motor permit issued by the transport authorities and also in breach of the terms and conditions of the insurance policy. It can safely be said in the absence of evidence on record to the contrary that on the date of accident, the truck in question was used only on one occasion for carrying passengers along with their goods namely defective engine of motor vehicle. It can safely be said in the absence of evidence on record to the contrary that on the date of accident, the truck in question was used only on one occasion for carrying passengers along with their goods namely defective engine of motor vehicle. The truck was admittedly loaded with sand and it was not meant for carrying passengers even on the date of the accident. Consequently, it is not the case where even on occasion other than the date on which the accident took place the truck was used for carriage of passengers. If this was so, then the test laid down by the apex court can safely be applied to the facts of the case before us and we have no hesitation in coming to the conclusion that the truck in question was not meant for regular carriage of passengers. If it was so used on one occasion or on stray occasions for carrying passengers nature of vehicle will not be changed from goods vehicle to the vehicle meant for carriage of passengers. It is, therefore, difficult to accept the contention of the learned counsel for the respondents that section 59 does not prohibit carriage of passengers for hire and reward." 8. Similar aspect has again examined by Division Bench of this Court in Oriental Ins. Co. Ltd. v. Tulsiben Panalal Joshi, 2001(1) GLH 237 after considering decision of apex court in Mallawwa v. Oriental Ins. Co. Ltd. (1999) 1 SCC 403 . Relevant observations made by Division Bench of this Court in para 13.1, 14, 15 are reproduced as under: "13.1. In this case, the Apex Court, after considering the conflicting views of various High Courts, approved the view taken by the Orissa High Court in case of New India Assurance Co. Ltd. v. Kanchan Bewa, reported in 1994 ACJ 138 [Orissa]. Shri Pandya has however tried to distinguish this verdict by referring to para 19 to 22 of the judgement of the Orissa High Court in New India Assurance Co. Ltd. [supra]. However, we do not find any force in the distinction suggested by Shri Pandya. 14. The Apex Court in the above case has laid down that mere use of a vehicle on one or two occasions or on a stray occasion for carrying passengers will not render the vehicle as one meant for carrying passengers generally or usually. Ltd. [supra]. However, we do not find any force in the distinction suggested by Shri Pandya. 14. The Apex Court in the above case has laid down that mere use of a vehicle on one or two occasions or on a stray occasion for carrying passengers will not render the vehicle as one meant for carrying passengers generally or usually. From the impugned judgement of the Tribunal, it is clear that the deceased Panalal Bhimraj boarded the truck at Badmer and was going to Palanpur for purchasing Bajra. Thus, from Badmer to Palanpur, he was going as a passenger and he was not going as owner of his grain namely Bajra. If it was to be carried from Palanpur to Badmer, in that event, it could be said that he was travelling in the ill-fated truck as owner of the goods. It is also clear from the judgement of the Tribunal that there were two other traders in the truck. Consequently, it seems difficult for us to accept that the truck was hired solely by Panalal Bhimraj. As such, on way from Badmer to Palanpur, the status of the deceased was that of a passenger and a passenger travelling in a goods vehicle is not entitled to any compensation from the Insurance Company, so also the legal representatives of such victims in case he expired in the accident. 15. Shri Mehta has also brought to our notice printed conditions in the policy regarding the limitations as to use. Third clause of this limitation as to use reads as under :- "The policy does not cover use for carrying passengers in the vehicle except employees [other than the driver] not exceeding six in number coming under the purview of Workman's Compensation Act, 1923." There was thus specific stipulation in the policy providing that the policy will not cover use for carrying passengers in the vehicle except its employees. Shri Pandya made unsuccessful attempt to argue that this limitation as to use is not binding because it is not reiterated in the conditions attached with the insurance policy. If limitations as to use were printed in the policy itself, there was no requirement that those conditions of limitation are re-introduced or re-incorporated in the conditions attached with the policy. Shri Pandya made unsuccessful attempt to argue that this limitation as to use is not binding because it is not reiterated in the conditions attached with the insurance policy. If limitations as to use were printed in the policy itself, there was no requirement that those conditions of limitation are re-introduced or re-incorporated in the conditions attached with the policy. There was thus breach of clause (3) regarding limitations as to use of the vehicle and for this breach also, the Insurance Company cannot be saddled with any liability." 9. Considering aforesaid two decisions of this Court wherein this Court has considered decision of apex court in Smt. Mallawwa as referred above, policy does not cover use for carrying passenger with or without goods in a goods vehicles except employees other than driver not exceeding six in number given under purview of WC Act as contended by learned Advocate Mr. Nanavati on behalf of appellants herein and, therefore, contentions raised by learned Advocate Mr. Trivedi on behalf of respondents claimants cannot be accepted and therefore, observations made by claims tribunal in para 21 in respect of holding insurance company liable, are liable to be quashed and set aside and insurance company is required to be exonerated from its liability to indemnify owner by paying compensation to claimants. Consequently, appellant insurance company is exonerated from its liability to indemnify owner by paying compensation to claimants pursuant to award made by claims tribunal impugned in these appeals. Rest of directions issued by claims tribunal remain in tact. Learned Advocate Mr. Vibhuti Nanavati for appellant submitted that total amount of award together with costs and interest has been deposited by appellant before claims tribunal concerned out of which 30 per cent amount has been disbursed in favour of claimants and subsequently also, some amount has been disbursed in favour of claimants, therefore, remaining amounts lying with claims tribunal at Gondal in Fixed Deposit Receipts may be ordered to be refunded to appellant insurance company together with interest accrued thereon, if any. 10. Considering submissions made by learned Advocate Mr. Vibhuti Nanavati, in respect of both appeals, it is directed to claims tribunal concerned that whatever remaining amount is lying in FDRs in both cases together with interest accrued thereon, if any, be refunded to appellant insurance company by way of an account payee cheque in name of Company after proper verification. 10. Considering submissions made by learned Advocate Mr. Vibhuti Nanavati, in respect of both appeals, it is directed to claims tribunal concerned that whatever remaining amount is lying in FDRs in both cases together with interest accrued thereon, if any, be refunded to appellant insurance company by way of an account payee cheque in name of Company after proper verification. It is clarified that as regards amount which has been disbursed in favour of claimants pursuant to orders of this court, appellant insurance company will be entitled to claim and recover same from owner of vehicle involved in accident by filing necessary execution proceedings straightway before claims tribunal concerned. Similarly, for recovering remaining amount of compensation together with costs and interest as awarded by claims tribunal concerned of claimants from owner of vehicle involved in accident, claimants will also be entitled to file necessary execution proceedings before claims tribunal concerned. Subject to these observations, modification and clarification, awards made by claims tribunal stands modified and appeals stands allowed with no order as to costs. Appeals allowed.