JUDGEMENT Though a common award dated 31.10.2005 was passed in MCOP.Nos.245, 246 and 260/2002, against which these appeals have been filed and a separate award dated 31.10.2005 was made in MCOP.No.358/2002, against which this Civil Revision Petition has been filed, since all the said claims arise out of the same accident, these Civil Miscellaneous Appeals and Civil Revision Petition are being disposed of by this common judgment. 2. By the impugned award, a sum of Rs.51,000/-as total compensation to the injured claimant R.Siva in MCOP.No.245/2002, a sum of Rs.2,39,000/-as total compensation to the claimants in MCOP.No.246/2002, who are the widow, daughters and son of the deceased P.Suresh, a sum of Rs.2,13,000/-as total compensation to the claimants in MCOP.No.260/2002, who are the parents of the deceased C.Narayanasamy and Rs.5000/-as total compensation to the injured claimant K.Sankar in MCOP.No.358/2002, were awarded with interest at 6 per cent p.a. from the date of the claim petition till the date of realization. 3. The short facts are that on 30.11.2001 at about 4.45 p.m. the 2nd Respondent/driver drove the offending lorry in a rash and negligent manner and applied sudden brake on seeing an oncoming bus in the opposite direction, as a result of which, he lost control and the vehicle went off the road and turned turtle. Two of the passengers, namely, C. Narayanasamy and P. Suresh sustained fatal injuries and the claimants in MCOP.Nos.245 and 358/2002 sustained grievous injuries. The Tribunal, on analyse of evidence, held that the accident had occurred solely due to the rash and negligent driving of the driver of the lorry and awarded compensation as stated above, fastening liability to pay compensation on the insured as well as the Insurer of the vehicle. Aggrieved against said award and fastening liability on the Insurance Company, these appeals and Civil Revision Petition have been filed by the Insurance Company. 4. Mr. S. Arun Kumar, the learned counsel for the Appellant Insurance Company contended that the Tribunal erred in fastening liability to pay compensation on the Insurance Company, in view of the fact that the deceased and the injured claimants were travelling as gratuitous passengers in the goods vehicle. The learned counsel referred to the decision of the three-judge bench of the Honourable Supreme Court reported in 2003-ACJ-1-SC (The New India Assurance Co. Limited Vs. The learned counsel referred to the decision of the three-judge bench of the Honourable Supreme Court reported in 2003-ACJ-1-SC (The New India Assurance Co. Limited Vs. Asha Rani), wherein it was held that although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of the goods vehicle, it was not the intention of the legislature to provide for the liability of the Insurer with respect to passengers especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people. The learned counsel would submit that from the materials placed on record, it is evident that the deceased and the injured claimants were not travelling as owners of the goods and they were travelling along with the family members of the driver of the vehicle in the lorry to go to Sri Varasithi Vinayagarswamy Temple at Kanipakkam. Therefore, he would submit that the Insurance Company will not be liable to pay compensation to the legal representatives of the deceased or to the victim of the accident, as they were travelling as gratuitous passengers. 5. The learned counsel for the Appellant Insurance Company drew the attention of this court to the First Information Report and also the evidence of PW.1 to PW.3 and submitted that there was categorical admission by them that the deceased and the injured claimants were travelling only for the purpose of offering prayers to Kanipakkam Temple. He would submit that in the aforementioned situation, there is no escape from the conclusion that the deceased and the injured claimants could not have travelled in the goods vehicle as representatives of the owner of the goods. 6. On the other hand, Mr. Dhanyakumar, the learned counsel for the Respondent/owner of the vehicle contended that it was for the Insurance Company to prove breach of conditions of the policy of insurance and that the same having not been done and the policy having not been marked on the side of the Insurance Company, the Judgement and Decree of the Tribunal cannot be assailed. Dhanyakumar, the learned counsel for the Respondent/owner of the vehicle contended that it was for the Insurance Company to prove breach of conditions of the policy of insurance and that the same having not been done and the policy having not been marked on the side of the Insurance Company, the Judgement and Decree of the Tribunal cannot be assailed. The learned counsel drew the attention of this court to the testimony of RW.1 wherein he has stated that the vehicle was taken away by the driver of the lorry without the knowledge of the owner and caused the accident. Therefore, he would submit that since the owner had no knowledge about the passengers being carried in the goods vehicle, there was no violation of terms and conditions of the Insurance Policy by the owner and therefore, the Insurance Company is liable to pay compensation. 7. Mr. K.A. Ravindran, the learned counsel for the Respondents/claimants submitted that since the offending vehicle was insured with the Appellant Insurance Company, the burden was on the Insurance Company to satisfy that the owner has willfully or deliberately violated the terms of the policy of insurance. The learned counsel would submit that since the Insurance Company failed to prove this fact, the Insurance Company was rightly held liable to pay compensation by the Tribunal. He would further contend that even if it is held that the Insurance Company is not liable, the Insurance Company can be directed to pay the compensation to the claimants, by giving rights to them to recover the same from the owner. 8. This court heard the learned counsel on either side and perused the materials on record and the impugned judgement and award. 9. At the outset, there is no averment in the respective claim petitions that the deceased or the injured were travelling in the offending vehicle as owner of the goods. All that was stated was that the deceased and the other injured persons were travelling along with the family of the driver to go to Kanipakkam Sri Varasithi Vinayagarsamy Temple to offer prayers and on way to the temple, the accident had occurred. The eye witness examined as PW.1 in MCOP.No.245/2002 has stated that they were travelling in the vehicle from Gudiyatham to Kanipakkam in Chittur District to go to the said Temple to offer prayers. The eye witness examined as PW.1 in MCOP.No.245/2002 has stated that they were travelling in the vehicle from Gudiyatham to Kanipakkam in Chittur District to go to the said Temple to offer prayers. His evidence indicated that the deceased Suresh and Narayanasamy and the injured claimant in MCOP.NO.358/2002 also travelled with him for the said purpose. He has not stated even a single word about their taking goods in the vehicle in question or travelling as owner of the goods. The claimant in MCOP.No.358/2002, while examining himself as PW.1 has stated that he was travelling along with coconut load from Gudiyatham to Kanipakkam. But, the evidence of PW.1, who is the injured claimant in MCOP.No.245/2002 did not indicate that Sankar travelled along with coconut load. In fact, even the owner had not put any suggestion to this witness that he was travelling in the capacity as owner of the goods. PW.1 Sanker has admitted in his cross examination that there is no proof to show that he was carrying coconut load in the offending vehicle at the time of the accident. 10. It is seen that the First Information Report has been laid on the complaint given by PW.1 Sankar. It has been averred in the First Information Report that the driver of the offending vehicle took the lorry along with his family members and the complainant and other friends to go to Sri Varasithi Vinayagar Samy Temple, Kanipakkam to offer prayers and on the way, the accident took place. He did not say that he was travelling as owner of the goods viz. coconut load. For the first time in the evidence before the Tribunal, that too after the one year since the examination of the other witnesses in the connected MCOPs, he has come forward with a version that he was travelling in the lorry along with his coconut load. The First Information Report had been made as a part of the claim petition and the allegation made in the First Information Report, which was registered immediately after the accident, has to be accepted. The First Information Report had been made as a part of the claim petition and the allegation made in the First Information Report, which was registered immediately after the accident, has to be accepted. Furthermore, in the depositions, PW.1 to PW.3 have clearly stated that the deceased and the other persons were travelling in the lorry to go to the Kanipakkam Temple to offer prayers and in that situation, it cannot be stated by any stretch of imagination that those persons could have travelled as owners of the goods or representatives of the owner of the goods. 11. The question as to whether burden of proof has been discharged by the Insurance Company would depend upon the facts and circumstances of each case. In this case, the facts are admitted and sufficient materials have been brought on record indicating that the deceased and the injured were travelling as gratuitous passengers and in such view of the matter, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers. As indicated hereinbefore, the First Information Report, which is relied on by the claimants and has been made a part of the claim petition, may be taken into consideration for arriving at a finding in regard to the accident and there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose. 12. The law with regard to liability of the Insurance Company in respect of passengers being carried in a goods vehicle is now well settled. A three judge bench of the Honourable Supreme Court in 2003-ACJ-1-SC (The New India Assurance Co. Limited Vs. Asha Rani) considered the question as to whether it is compulsory for the Insurance Company to cover the liability in respect of the passengers travelling in a goods vehicle. It is no doubt true that this decision was in context of the unamended Act. The Honourable Supreme Court overruled its earlier judgement in New India Assurance Co. Limited Vs. Satpal Singh (2000-ACJ-1-SC) and held as follows:- "... 25. It is no doubt true that this decision was in context of the unamended Act. The Honourable Supreme Court overruled its earlier judgement in New India Assurance Co. Limited Vs. Satpal Singh (2000-ACJ-1-SC) and held as follows:- "... 25. Section 147 of 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle.' Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage'. 26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used, i.e., 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor." 13. This matter again came up for consideration in Oriental Insurance Co. Limited. Vs. Devireddy Konda Reddy (2003-ACJ-468-SC). The Honourable Supreme Court considered the difference between the definition of 'goods vehicle' appearing in the Motor Vehicles Act, 1939 and 'goods carriage' appearing in the Motor Vehicles Act, 1988 and held as follows:- "The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in definition of 'goods vehicle' in the old Act the position becomes further clear because the expression used is 'goods carriage' is solely for the carriage of 'goods'. Carrying of passengers in a goods carriage is not contemplated in the Act". Thus, the Honourable Supreme Court held that passengers cannot be carried in a goods vehicle. 14. In National Insurance Co. Limited Vs. Carrying of passengers in a goods carriage is not contemplated in the Act". Thus, the Honourable Supreme Court held that passengers cannot be carried in a goods vehicle. 14. In National Insurance Co. Limited Vs. Baljit Kaur (2004-ACJ-428-SC), the Honourable Supreme Court considered the impact of the amendment to the Motor Vehicles Act made in 1994. The Honourable Supreme Court held that after the amendment of 1994, the Insurance Company was bound to cover liability in respect of owner of the goods or his authorised representative travelling in the goods vehicle. However, it further held that no passenger can be carried in a goods vehicle and the Insurance Company was not liable to pay compensation with respect to passengers especially gratuitous passengers. The Honourable Supreme Court held thus:- "20. It is therefore manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would not be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the Insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people." 15. The Honourable Supreme Court also considered this point in National Insurance Company Limited Vs. Ajit Kumar (2003-ACJ-1931-SC). After considering the definitions and various provisions of the Motor Vehicles Act, both amended and unamended, the Honourable Supreme Court held as follows:- "The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intend was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage' is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. This is clear from the expression 'in addition to passengers' as contained in definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage' is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of Insurance Policy. Even section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act 1923. There is no reference to any passenger in 'goods carriage'. 16. Following the aforesaid decisions, a similar view was taken by the Honourable Supreme Court in 2004-ACJ-1909 (National Insurance Co. Limited Vs. Chinnamma). In National Insurance Co. Limited Vs. Cholleti Bharatamma (2008-ACJ-268-SC), the Honourable Supreme Court was dealing with a matter in which large number of persons were travelling in a goods carriage vehicle. It was contended that on behalf of the claimants that all these persons were travelling as owners of the goods and hence, the Insurance Company was liable to pay the compensation. The Honourable Supreme Court rejected this contention and held as follows:- "8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the Insurance Policy covers the death or injuries either of the owner of the goods or his authorised representative." 17. In the present case, on the basis of the evidence on record, it is apparent that the deceased and the injured claimants were not travelling as owner of the goods, but was merely a gratuitous passengers. It is thus obvious that they were only gratuitous passengers and even assuming that the injured claimant Sanker had taken some goods, he could not be said to be travelling as owner of the goods. To be covered under the terms of the Act, some evidence must be led to show that the deceased had hired the goods vehicle for transportation of his goods. To be covered under the terms of the Act, some evidence must be led to show that the deceased had hired the goods vehicle for transportation of his goods. In this case, the evidence of the injured claimant Sanker which is inconsistent with the statement made by him in the First Information Report clearly indicated that he was travelling only as a gratuitous passenger and not as owner of the goods. 18. At this juncture, it is relevant to refer to the decision of the Honourable Supreme Court reported in 2008-ACJ-268 (National Insurance Company Limited Vs. Cholleti Bharatamma and others) wherein the it was specifically held that the Insurance Company even in respect of the owner is only liable if such owner travels in the cabin of the truck and not if he is travelling in the rear of the truck. Therefore, the injured claimant and the deceased having travelled as gratuitous passengers the Insurance Company cannot be held liable to pay compensation. 19. The next question that arises for consideration is as to whether the Insurance Company can be directed to satisfy the award and then to recover the same from the insured. 20. In 2008-ACJ-2144-SC (National Insurance Co. Limited Vs. Kaushalaya Devi), the Honourable Supreme Court set aside the directions given by the High Court directing the Insurance Company to deposit the amount. It specifically held that if the amount had not been withdrawn by the claimant, it should be refunded to the Insurance Company and the claimant should recover from the owner of the vehicle. Therefore, the Insurance Company cannot be directed to pay the amount to the claimants and then, to recover from the owner of the vehicle. 21. In so far as the quantum of compensation is concerned, neither the owner nor the claimant challenged the quantum of compensation fixed by the Tribunal and I find no reason to interfere with the awarded passed by the Tribunal in all the claim petitions. 22. In the result, these Civil Miscellaneous Appeals and Civil Revision Petition are allowed and the findings of the Tribunal fastening liability to pay compensation on the Insurance Company is hereby set aside and the owner is held liable to pay compensation to the claimants in all the claim petitions. The quantum of compensation awarded by the Tribunal and the apportionment apportioned by the Tribunal, in all the claim petitions are confirmed. The quantum of compensation awarded by the Tribunal and the apportionment apportioned by the Tribunal, in all the claim petitions are confirmed. The owner is directed to deposit the respective award amounts with interest as awarded by the Tribunal in the respective claim petitions within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the injured claimants in MCOP.Nos.245 and 358/2002, the claimants in MCOP.No. 260/2002 and the 1st claimant in MCOP.246/2002 are permitted to withdraw their respective award amounts with proportionate interest. The share of the minor claimants in MCOP.No.246/2002 shall be invested in any one of the Nationalised Banks, till they attains majority. The 1st claimant in MCOP.No.246/2002 is entitled to withdraw the interest from the deposit of the share of the minor claimants once in three months. The Appellant Insurance Company is permitted to withdraw the award amount with interest if any deposited by them. No costs.