JUDGMENT : A.V. CHANDRASHEKARA, J. 1. A common judgment and award passed in MVC Nos. 784 and 786 of 2004 which was pending on the file of Motor Accident Claims Tribunal, Tumkur (Fast Track Court), dated 31-3-2008 is called in question by the insurer on the ground of liability. MVC No. 784 of 2004 came to be filed by the legal representatives of G.K. Govindaiah in a road accident that occurred on 21-1-2004 while traveling in a goods tempo bearing Registration No. MH-26-H-0983. M.F.A. No. 1580 of 2009 arises out of the judgment and award in MVC No. 786 of 2004. D.K. Venkataiah who was injured in the said accident was traveling along with goods in the said tempo. On a claim petition filed by the legal representatives of Govindaiah and Venkataiah separately, a sum of Rs. 6,53,000/- has been awarded as compensation to the claimants in MVC No. 784 of 2004 and a sum of Rs. 6,34,000/- has been awarded to the legal representatives of D.K. Venkataiah. 2. The accident is stated to have taken place near Sonari-Phata in Maharashtra when the vehicle in which they were traveling along with goods dashed against a roadside tree. The grievance of the insurer is that the Tribunal has not properly analysed the oral and documentary evidence in right perspective. 3. It is their case that the deceased Govindaiah and injured Venkataiah were traveling as passengers having paid fare to the driver of the goods tempo and therefore the insurer is not liable to indemnify the claimants. According to the learned Counsel, the contents of Ex. P. 1-FIR disclose that they were traveling as passengers in a goods tempo and this aspect of the matter has been virtually ignored. It is contended that the initial burden cast on the claimants to prove that the deceased Govindaiah and injured Venkataiah were traveling along with the goods and that they had hired the said vehicle, has not been effectively discharged and therefore the onus did not shift on the insurer. 4. Relying upon the decision rendered by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, (2005) 12 SCC 243 , he has argued that Govindaiah and Venkataiah were traveling as gratuitous passengers in a goods vehicle. 4. Relying upon the decision rendered by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, (2005) 12 SCC 243 , he has argued that Govindaiah and Venkataiah were traveling as gratuitous passengers in a goods vehicle. Reliance is placed on yet another decision of this Court rendered in the case of The United India Insurance Company Ltd. Vs. Smt. Lalithabai and Others, (2007) ACJ 2342, to contend that small bags containing clothes cannot be considered as goods within the meaning of Section 2(13) of the Motor Vehicles Act, 1988. Reliance is placed on yet another decision in the case of National Insurance Company Limited Vs. Shri Shankar Baburao Gavade and Others, (2008) ACJ 2730, to contend that the deceased and injured were not engaged by the insured and that they were only being carried as passengers by the driver and therefore the insurer is not liable to pay compensation in respect of such workers. 5. It is further argued that the learned Judge has adopted a wrong approach to the state of affairs. It is argued that the M.V. Act does not enjoin statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods carrier and the insurer would have no liability thereof. 6. Learned Counsel, Mr. A.V. Gangadharappa for the respondents-claimants has supported the judgment and award of the Trial Court, contending that the learned Judge has properly analysed the oral and documentary evidence in right perspective, that too, on the basis of broad preponderance of probabilities. He has placed reliance on paragraph 14 of the impugned judgment and award to contend that the deceased and injured were carrying bundles of clothes from Maharashtra and the same will have to be considered as "goods" and not "luggage" or personal belongings. Hence, it is argued that there is no scope for interference with the well-considered judgment and award of the Tribunal and hence he has requested this Court to dismiss both the appeals. 7. The Presiding Officer has held that deceased Govindaiah and injured Venkataiah were traveling along with the goods in the offending vehicle and they were not passengers. Hence he has directed the insurer to indemnify the claimants. Necessary discussion is found at paragraphs 12 to 17 of the impugned judgment. 7. The Presiding Officer has held that deceased Govindaiah and injured Venkataiah were traveling along with the goods in the offending vehicle and they were not passengers. Hence he has directed the insurer to indemnify the claimants. Necessary discussion is found at paragraphs 12 to 17 of the impugned judgment. What is held by the Presiding Officer of the Tribunal is that no one could expect the deceased and injured to travel in a goods vehicle from Maharashtra to Karnataka without any goods. According to the Tribunal, they would have preferred any other mode of transport like bus or train if they were possessing only luggage. It is further held in paragraph 16 of the impugned judgment that the deceased and injured being small businessmen, were carrying goods from Maharashtra to Karnataka and they cannot be termed as gratuitous passengers. It is further held that no one could expect such businessmen to travel in a goods vehicle, that too, without goods. It is this finding which is called in question seriously by the learned Counsel for the insurer. 8. This Court, being the final Court of facts, has to see as to whether the Tribunal is justified in coming to such conclusion. Ex. P. 1 is the FIR registered by the Inspector, Bokar of Nanded District, Maharashtra. The English translation of the document is made available before the Trial Court and it is marked as Ex. P. 2. The said FIR was lodged by the cleaner of the offending vehicle who was traveling when the accident occurred. The relevant portion of the translation found in Ex. P. 2 is as follows: "Yesterday on 21-1-2004 at about 6.00 p.m. in the evening after loading soyabean seeds to the tempo bearing No. MH-26-H-0983, we were proceeding from Himayatnagar to Valsa and the vehicle was being driven by Zameer M. Sheikh. At about 8.00 p.m., we reached Maisa and loaded the said soyabean to another tempo. After taking meals, we left Maisa at 11.15 p.m. on Maisa-Nanded route towards Himayatnagar. Near Andhra Pradesh RTO, some tourists showed signal to the driver to stop and he stopped. They told us they wanted to go towards Bokar and got into the tempo and sat down comfortably. They loaded cloth bundles to the vehicle. Our vehicle started to move towards Bokar. Near Andhra Pradesh RTO, some tourists showed signal to the driver to stop and he stopped. They told us they wanted to go towards Bokar and got into the tempo and sat down comfortably. They loaded cloth bundles to the vehicle. Our vehicle started to move towards Bokar. When the tempo reached a place near Sonarighat on Maisa-Nanded Road, we screamed to our driver and the tempo dashed against a jally tree and fell down near a ditch on the roadside and stopped. In the said accident, Govindaiah sustained severe injuries to his head and leg and Venkataiah sustained injuries to his chest. The driver had also sustained injuries to his head and chest. The cleaner of the vehicle removed the injured from the place and came to know that Rajanna aged 53 years and Govindaiah were dead". 9. What is argued before this Court by the learned Counsel for the insurer is that the FIR is lodged at an undisputed point of time and discloses that four persons who got into the tempo near Andhra Pradesh RTO stop were passengers and the bags they had with them were personal belongings and they were not goods. It is argued by the appellants that they were luggage and therefore those persons cannot be considered as persons traveling with goods, but were gratuitous passengers. It is in this regard he has relied on the decision of the Hon'ble Apex Court in the case of Bommithi Subbhayamma. Relying on the decision rendered in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, (2003) 3 SCC 223, it is argued that the deceased and injured were passengers traveling in a goods vehicle and the insurance policy does not cover such passengers. What is ultimately held in Bommithi's case by the Hon'ble Apex Court is as follows: 10. Although the owner of the goods or his authorised representative would now be covered by the insurance policy in respect of a goods vehicle, it was not the intention of the Legislature to provide for liability of the insurer with respect to passengers, especially gratuitous passengers who were neither contemplated at the time of the contract of insurance was entered into, nor any premium was paid to the extent of the insurance to such category of people. 11. 11. Another decision of this Court rendered in the case of Smt. Lalithabai, has been relied upon to contend that the articles which the injured and deceased possessed were personal belongings and not goods. The cloth that they possessed cannot be termed as goods. 12. Another decision of this Court rendered in the case of Shankar Baburao Gavade, is relied upon to contend that the injured and deceased were not workmen engaged to load or unload goods, but were passengers carrying their personal belongings and therefore the insurer is not liable to indemnify such persons. 13. P.W. 1-Rathnamma is the wife of deceased Govindaiah. She has asserted on oath in her examination-in-chief that her husband Govindaiah and others had been to Nizambad in Nanded for the purpose of purchasing clothes so as to sell the same in retail at their native place-Gowripur and other surrounding places like Gubbi, Tumkur, etc. It is further asserted that after purchasing the clothes at Nizambad, her husband and other persons were carrying cloth bundles for transport. This is found in paragraph 2 of the examination-in-chief. She has feigned ignorance as to whether her husband had obtained licence to sell the clothes. In the very next sentence she has deposed that she knew her husband was doing business in cloth. A suggestion that her husband was not doing any business in cloth has been specifically denied. Being a small businessman dealing in clothes, deceased had not maintained any receipt book or document. It is her case that her husband was bringing clothes worth Rs. 20,000/-. 14. Some materials are placed on record in regard to purchase of clothes from Nanded. M/s. Namchand Topandas, M.G. Road, Nanded has issued a bill on 14-12-2003 in respect of clothes sold to the deceased. Similarly he has produced a receipt for Rs. 2,991/- from M/s. Sowbhagya Sarees an Textiles, Gulbarga. Similar bills obtained from Veetraj Wholesale Cloth Merchants, Chitradurga, for Rs. 5,945/- are also produced. A bill dated 21-7-2002 issued by Vardhaman Textiles, Bijapur, for Rs. 1,441/- has been produced. 15. The injured Venkataiah had purchased clothes from Palaniappa Mudaliar, Chikpet, Bangalore, for Rs. 9,441/- on 26-3-2003. All these bills have been marked as Exs. P. 14(a) to P. 14(d). They are all prior to the accident in question. 5,945/- are also produced. A bill dated 21-7-2002 issued by Vardhaman Textiles, Bijapur, for Rs. 1,441/- has been produced. 15. The injured Venkataiah had purchased clothes from Palaniappa Mudaliar, Chikpet, Bangalore, for Rs. 9,441/- on 26-3-2003. All these bills have been marked as Exs. P. 14(a) to P. 14(d). They are all prior to the accident in question. If the genuineness of these documents had been doubted by the insurer, nothing came in their way to have inquired about these sellers and adduced evidence in that regard. The assertion of P.Ws. 1 and 2 is supported by documentary evidence and by no stretch of imagination Exs. P. 14(a) to P. 14(d) could be considered as got up documents. 16. Though P.W. 1 has been cross-examined, nothing worth has been culled out from her mouth to discredit her deposition to the effect that her husband was not a retail dealer in clothes in his village and surrounding areas. 17. The injured-Venkataiah is examined as P.W. 3 and he has also asserted on oath that he was traveling along with the husband of the deceased from Maharashtra with cloth bundles. He has asserted that he had clothes to the tune of Rs. 25,000/- at the relevant point of time having purchased the same at Nizambad and he was waiting along with the deceased and Rajanna to go back to the native place along with the goods. Even during his cross-examination he has specifically deposed that all cloth bundles they had possessed were stained with blood because of the accident. He has deposed that if one were to travel in a bus, it would cost Rs. 1,000/-. A suggestion put to him that all of them got into the tempo by paying fare has been specifically denied. Nowhere it is suggested either to P.Ws. 1 or 2 that Exs. P. 14(a) to P. 14(d) are got up documents. 18. P.W. 3 is the injured in the same accident. He has asserted about traveling from Nanded towards Karnataka along with the goods in the tempo. A suggestion put to him that he had not gone to Nanded to purchase clothes has been specifically denied. If there was any serious doubt with regard to the investigation conducted by the police, the insurer could have furnished other police documents. 19. He has asserted about traveling from Nanded towards Karnataka along with the goods in the tempo. A suggestion put to him that he had not gone to Nanded to purchase clothes has been specifically denied. If there was any serious doubt with regard to the investigation conducted by the police, the insurer could have furnished other police documents. 19. The mahazar drawn at the spot would be relevant which could have been produced by the insurer to disprove the assertion of P.Ws. 1 to 3, since they are all documents prepared by responsible police officials. At an undisputed point of time, the first informant who was never connected with the claimants or the deceased has mentioned in Ex. P. 1 that four persons got into the tempo along with cloth bundles. This would fortify the assertion of P.Ws. 1 to 3 that the deceased and injured were traveling in the goods tempo, not as passengers as owners of the goods and that they had hired the same. 20. What is argued before this Court by the learned Counsel for the insurer is that when the offending vehicle had been loaded with soyabean seeds, it is ununderstandable as to how these persons could get into the tempo along with the goods. It is not forthcoming as to what quantity of soyabean seeds was being transported in the offending vehicle at that point of time. If four persons who got into the tempo could sit comfortably, it would give an indication that there was sufficient space for loading other cloth bundles also. 21. Taking into consideration the totality of the facts and circumstances of the case, the Tribunal has come to a right conclusion that the deceased and injured were traveling along with their goods and therefore the insurer is liable to indemnify the claimants. Even on reappreciation of the entire evidence on the touchstone of broad preponderance of probabilities, this Court is of the opinion that the Tribunal has not committed any illegality or perversity in appreciating the materials placed on record. On the other hand, the Tribunal has adopted right approach to the real state of affairs after assessing the oral and documentary evidence on the touchstone of intrinsic probabilities. Hence there are no grounds to interfere with the well-considered judgment and award passed by the Tribunal. On the other hand, the Tribunal has adopted right approach to the real state of affairs after assessing the oral and documentary evidence on the touchstone of intrinsic probabilities. Hence there are no grounds to interfere with the well-considered judgment and award passed by the Tribunal. Mulcting liability on the insurer on the basis of the contract of indemnity is justified and both the appeals are dismissed. In the circumstances, parties to bear their own costs.