JUDGMENT : M.D. SHAH, J. 1. These appeals are filed against the common judgment and award dated 5th September, 2006 passed by the learned Motor Accident Claims Tribunal (Auxiliary), Surat in Motor Accident Claim Petitions Nos.410 of 1991 to 412 of 1991 and 1018 of 1991. 2. The brief facts leading to filing of these appeals are such that the claimants were travelling as unauthorized passengers (gratuitous passengers) in truck No.GTC- 4119 which was loaded with grits on 14-5-1991 at about 5.30 p.m. and when the truck, was going from Kosamba to Kim, the driver of the truck was driving the vehicle in a rash and negligent manner on the wrong side as a result of which the truck lost control over the vehicle and collided with the truck coming from opposite direction causing fatal serious injuries to two persons and grievous injuries to other two claimants. Therefore, the claimants filed the above stated claim petitions, which were decided by the above mentioned common judgment and award. It is held by the Tribunal that claimants were travelling in the vehicle as gratuitous passengers. 3. Heard learned advocate for the appellants, Mr.Palak Thakkar. 4. Learned advocate, Mr.Thakkar took this Court through the evidence of the deposition of the claimants. It transpires from the evidence of this witness that passengers were travelling in the truck from Kosamba to Kim. He placed reliance on the case of National Insurance Company Limited v. Savitri Devi and others etc., reported in 2012(4) Scale 111 , more particularly, on paragraphs 10 to 13. 5. This Court has gone through the judgment and award and perused the case relied upon by learned advocate. Paragraphs 10 to 13 of the judgment of Savitri Devi (supra) reads as under: "10. The specific case of the claimants was that the barat was being taken in the said open truck on 12.11.1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy. 11. Dealing with similar circumstance, this Court has held in ACJ 2005(2) 721, titled as National Insurance Co.Ltd. v. Bommithi Subbhayamma and others as under:- "8..................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 now 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 any premium was paid to the extent of the benefit of insurance to such category of people. 9. The same view was reiterated in National Insurance Co. Ltd. v. Challa Bharathamma, 2004 ACJ 2094 (SC) : AIR 2004 SC 4882 ; Pramod Kumar Agrawal v. Mushtari Begum, 2004 ACJ 1903 (SC) : AIR 2004 SC 4360 and also in National Insurance Co.Ltd. v. V. Chinnamma, 2004 ACJ 1909 (SC) : AIR 2004 SC 4338 . 10. In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This Appeal is allowed. We, however, make it clear that the claimants-respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Vehicle Accidents Claims Tribunal from the owner of the vehicle. No costs." 12. Similar view has been reiterated in (2009) 2 SCC 75 : AIR 2009 SC 1499 , titled as National Insurance Company Limited v. Rattani and others, paragraph 14 and 15 of which are reproduced hereunder:- "14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, 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. 15. 15. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose." 13. In the light of the aforesaid judgments, we have no doubt in our minds that the impugned Judgment and Order of the learned Single Judge dated 28.7.2005 cannot be sustained. The same is hereby set aside and quashed. No liability can be fastened on the Appellant-Insurance Company. The appeals of the Appellant-Insurance Company are allowed to this extent." 6. On perusing the impugned judgment, it transpires that the Tribunal has held in page 24 that though breach of condition of policy is there, the claimants are entitled to recover the amount from the insurance company and insurance company is at liberty to recover the said amount from the owner of the vehicle. In the above referred judgment, once it is held by the Tribunal and considering over all evidence and documents on record when passengers were travelling in the goods vehicle as gratuitous passengers, then insurance company could not be held liable for payment towards the compensation and claim against the insurance company should be dismissed and award should be passed against the driver and owner of the vehicle. Considering this evidence also, all the passengers were travelling as gratuitous passengers and so in light of the above referred judgment delivered by the Apex Court, claims against the insurance company is required to be dismissed. 7. In view of the above, these appeals are partly allowed. The claim petitions are dismissed qua the appellant insurance company i.e. original opponent no.3. The common judgment and award dated 5th September, 2006 passed by the learned Motor Accident Claims Tribunal (Auxiliary), Surat in Motor Accident Claim Petitions Nos.410 of 1991 to 412 of 1991 and 1018 of 1991 is accordingly modified and the claim petitions are dismissed against opponent no.3. The common judgment and award dated 5th September, 2006 passed by the learned Motor Accident Claims Tribunal (Auxiliary), Surat in Motor Accident Claim Petitions Nos.410 of 1991 to 412 of 1991 and 1018 of 1991 is accordingly modified and the claim petitions are dismissed against opponent no.3. It is clarified that the amount which is paid to the claimants in pursuance of the order passed by this court will not be recovered by the insurance company from the claimants and the insurance company is at liberty to recover from the owner and driver of the vehicle. The amount deposited by the insurance company in pursuance of the order passed by this Court and lying with the bank in fixed deposit will be refunded to the present appellant-insurance company. It is further clarified that the claim petitions are dismissed only qua opponent no.3 and the judgment and award passed by the Tribunal against the opponents no.1 and 2 is undisturbed and the claimants are at liberty to recover the amount from the owner and driver of the vehicle. 8. Office is directed to send the R & P to the learned Tribunal forthwith. Appeal Partly allowed.