JUDGMENT : M.D. SHAH, J. 1. Though served, nobody appears for the respondents herein-original claimants. 2. By this appeals, the appellant herein-original opponent no. 3 has challenged the judgment and award dated 20.04.2011 passed by the learned M.A.C.T. (Auxi.) Vadodara in M.A.C.P. No. 1744 of 2004 to M.A.C.P. No. 1747 of 2004. 3. Claimants filed claim petition for getting compensation on account of accident which took place on 23.02.2004. Claimants were travelling in the tempo as passengers. At that time original opponent no. 1 came driving his vehicle in rash and negligent manner. As a result, claimants received injuries. After considering oral and documentary evidence on record, learned Tribunal by judgment dated 20.04.2011 partly allowed the claim petitions and awarded compensation in favour of the original claimants. Against the said award, original opponent no. 3 has preferred this appeals. 4. It is submitted by Mr. Mehta, learned advocate for the appellant herein that Tribunal has not properly considered and appreciated the evidence on record. It is further submitted that prima facie there is breach of condition of policy and so claimants are not entitled to get any compensation under the provisions of the M.V. Act and inspite of that Tribunal has committed error by passing award. It is also submitted that risk of passengers is not covered under the policy. Learned advocate for the appellant has relied on the case of National Insurance Company Limited vs. Savitri Devi and Others, 2012 (4) Scale 111 , more particularly para 10 to 13. Therefore, it is requested to allow the appeal. 5. This Court has gone through the judgment and award dated 20.04.2011 passed by the learned Tribunal together with oral as well as documentary evidence on record. 6. It is not in dispute that in the accident, claimants received injuries. It is admitted fact that claimants were travelling in the tempo for which risk was not covered to the passengers. It is also specifically stated in the F.I.R. that original claimants were travelling in tempo for attending marriage ceremony. 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. 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 2005 (2) ACJ 721, titled as National Insurance Co. Ltd. vs. 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. vs. Challa Bharathamma, 2004 ACJ 2094 (SC), Pramod Kumar Agrawal vs. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Co. Ltd. vs. V. Chinnamma, 2004 ACJ 1909 (SC). 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 titled as National Insurance Company Limited vs. 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. Similar view has been reiterated in (2009) 2 SCC 75 titled as National Insurance Company Limited vs. 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. 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.” 7. On perusing the impugned judgment, it transpires that the Tribunal has held 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, claim against the insurance company is required to be dismissed. 8. In view of the above, this appeals are allowed. The claim petitions are dismissed qua original opponent no. 3 insurance company. Judgment and award dated 20.04.2011 passed by the learned M.A.C.T. (Auxi.) Vadodara in M.A.C.P. No. 1744 of 2004 to M.A.C.P. No. 1747 of 2004 are hereby quashed and set aside and the claim petitions are dismissed against original 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 original 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 applicant insurance company with interest. It is clarified that the claim petitions are dismissed only qua opponent no. 3 and the judgment and award passed by the Tribunal against the opponent nos. 1 and 2 is undisturbed and the claimants are at liberty to recover the amount from the owner and driver of the vehicle. Office is directed to send the Record and Proceedings to the learned Tribunal forthwith. Appeals allowed.