JUDGMENT : M.D. SHAH, J. 1. This appeal has been filed by the original opponent No. 3-Oriental Insurance Company Ltd. under Section 173 of the Motor Vehicles Act, 1988 being aggrieved and dissatisfied with the judgment and award dated 6th July, 2001 passed by the Motor Accidents Claims Tribunal (Aux.), Bharuch, in MACP No. 335 of 1997 whereby the tribunal has awarded Rs.8,72,500/- with proportionate costs and interest at the rate of 9% per annum to be paid by the opponents jointly and severally from the date of petition till realisation. 2. The claim petition was filed by heirs and legal representatives of deceased Lallubhai Babarbhai Parmar claiming compensation of Rs.15,00,000/- for death of the deceased which is caused in an accident which occurred on 3rd March,1997 when hired tempo No. GJ-6-U-4796 in which he was travelling with his friend Keshavbhai Parsottambhai Vyas for purchase of a fridge suddenly overturned causing fatal injuries to the deceased. Upon service of summons and on hearing the learned counsel for the parties and considering the oral as well as documentary evidence on record, the impugned award was passed by the Tribunal. 3. I have heard learned advocate, Mr. K.K.Nair for the appellant and Mr. M.T.M. Hakim for the respondent No. 4. I have also taken into consideration the relevant oral as well as documentary evidence such as FIR, panchnama and other evidence. 4. Mr.Hakim relying on a decision of Hon'ble Apex Court in the case of Manager, National Insurance Company Ltd. v. Saju P. Paul and another, reported in 2013 A.C.J. 554 has submitted that as amount is already deposited by the Insurance Company, Insurance Company can recover the same from the owner of the vehicle. 5. Having heard the learned advocate for the appellant and having regard to the facts and circumstances, it is prima facie established that deceased was travelling in the tempo as a gratuitous passenger. It is to be noted that risk of gratuitous passengers is not covered under the terms and conditions of policy and hence, Insurance Company cannot be held liable to satisfy the claim as there is a clear-cut breach of policy conditions. In view of the above, Insurance Company requires to be exonerated from liability and driver and owner of the tempo i.e. original opponent Nos. 1 and 2 require to be fastened with the entire liability. In view of the above, Insurance Company requires to be exonerated from liability and driver and owner of the tempo i.e. original opponent Nos. 1 and 2 require to be fastened with the entire liability. Hence, impugned award requires to be modified to the aforesaid extent. 6. As far as decision relied on by learned advocate, Mr. Hakim is concerned, it is to be noted that the Hon'ble Apex Court has used its discretion under Article 142 of the Constitution of India looking to the peculiar facts and circumstances of the case and passed order for pay and recover. However, considering the power of this Court as an appellate court, said judgment would not be of any help to the respondents-original claimants. 7. Thus, this appeal is partly allowed. It is hereby ordered that the original opponent No. 3-Oriental Insurance Company Ltd. is exonerated from payment of compensation to the original claimants. It is also ordered that original opponent Nos. 1 and 2 i.e. driver and owner are liable for payment of compensation to the original claimants as per the award passed by the tribunal and original claimants are hereby entitled to recover the amount of compensation from driver and owner of tempo. The amount, if any, received by the claimants as per the order passed by this Court will not be refunded to the insurance company but insurance company is at liberty to recover the same from the owner and driver of tempo. The amount, if any, deposited by the Insurance Company shall be refunded to it. The impugned judgment and award is modified to the aforesaid extent. The remaining part of the judgment and award would remain unaltered. 8. Office to send back the records and proceedings, if any, forthwith. Appeal partly allowed.