JUDGMENT : R.P. DHOLARIA, J. 1. This appeal has been preferred by the original claimants against the judgment and award dated 30.11.2005 passed by learned Motor Accident Claims Tribunal (Aux.), Sabarkantha at Himmatnagar in Motor Accident Claim Petition No.746 of 1995 qua exonerating or not fastening liability to pay compensation on the part of respondent No.3-Oriental Insurance Company and they have also challenged quantum fixed by learned Tribunal contending that the award of compensation is on lower side. 2. The short facts of the present appeal in brief are that on 28.5.1995, deceased Virendrasinh who was working as second driver on truck No. GJ 9T 7139 was sitting in the cabin of the said truck and was coming to his native Rangpur and at around 8.30 a.m., when the said truck reached near the temple of Chotari Mata, the driver of the said truck i.e. respondent No.1 had taken the turn in full speed due to which the door of the cabin got opened and deceased was thrown out of the cabin of the truck and sustained several injuries and succumbed to the injuries. The heirs and legal representatives of the deceased filed Motor Accident Claims Petition No.746 of 1995 in the court of learned Motor Accident Claims Tribunal (Aux.), Sabarkantha at Himatnagar. Learned Tribunal has partly allowed the claim petition. Being aggrieved qua exonerating or not fastening liability to pay compensation on the part of respondent No.3-Oriental Insurance Company as well as quantum fixed by learned Tribunal, the present appeal is preferred before this Court. 3. Heard learned counsel Mr. N.L. Ramnani for Mr. G.T. Dayani, learned counsel for the appellants and Ms. Karuna V. Rahevar for respondent No.3. Though served, none appears for respondent Nos.1 and 2. 4. Mr. N.L. Ramnani, learned counsel for the appellants has taken this court through oral evidence as well as documentary evidence in the nature of FIR, panchnama as well as driving licence of the deceased which came to be produced before the learned Tribunal and has argued that learned Tribunal has wrongly appreciated oral as well as documentary evidence available on record and resultantly, learned Tribunal has wrongly recorded the finding that deceased Virendrasinh Mansinh Jadeja was travelling in the capacity as illegal and gratuitous passenger in the goods vehicle and, consequently, therefore, no liability can be fastened upon the insurance company. He, therefore, requested this Court to allow this appeal. He, therefore, requested this Court to allow this appeal. 5. Against the aforesaid argument, Ms. Rahevar, learned counsel for respondent No.3 has contended that the finding recorded by learned Tribunal is in accordance with the evidence available on record and risk of the deceased is not covered under the insurance policy and the deceased was travelling in the goods vehicle and, therefore, rightly liability upon the insurance company has not been fastened by learned Tribunal which does not call for interference by this Court in this appeal. Lastly, she has requested to dismiss this appeal. 6. In order to appreciate the aforesaid contention raised by learned counsel for the appellants on the point of liability to pay compensation by the insurance company, this Court has perused the insurance policy which is at Exh.45 which clearly indicates that the policy is in the nature of comprehensive risk wherein various sorts of premium came to be recovered from the registered owner and even premium for six employees as well as six coolies have also been taken over and above the premium of driver and cleaner. It can be noticed from the record that the appellants have put up the case in the claim petition itself that deceased Virendrasinh Jadeja was working as second driver upon truck bearing registration No. GJ 9T 7139 on 28.5.1995 and he was travelling in the capacity as second driver and regular driver was driving the aforesaid truck at the relevant time and he was sitting in the cabin of the said truck on the left side of the driver. It can also be noticed that when the truck was going on, the side door of the truck was opened and the deceased was thrown out from the truck and the accident occurred. It is also pointed out that the deceased was holding heavy driving licence which came to be issued by the RTO, Himmatnagar on 5.9.1994. One Mukeshbhai Ishwarbhai Patel-respondent No.2, owner of the truck bearing registration No. GJ 9T 7139 has also been examined vide Exh.37 wherein he has deposed that on 28.5.1995 deceased Virendrasinh Jadeja was travelling in his truck as second driver and he was being paid Rs. 2000/- per month and he was also holding heavy driving licence to drive the truck. One Mukeshbhai Ishwarbhai Patel-respondent No.2, owner of the truck bearing registration No. GJ 9T 7139 has also been examined vide Exh.37 wherein he has deposed that on 28.5.1995 deceased Virendrasinh Jadeja was travelling in his truck as second driver and he was being paid Rs. 2000/- per month and he was also holding heavy driving licence to drive the truck. He has been cross examined by learned counsel for the insurance company wherein the insurance company has put up the case that the truck was used for carrying passengers to attend marriage function and he was one of the passengers who was going to attend the marriage function and several persons were thrown out from the truck and the deceased was one of them. 7. The insurance company has also examined one Ramdas Keshavdas Rathod who was functioning as Divisional Manager of Oriental Insurance Company at Himmatnagar Division, at the relevant time vide Exh.62 wherein he has deposed that vehicle No. GJ 9T 7139 is the goods vehicle and the insurance company has not covered the risk of any passenger. He has further deposed that the insurance company has recovered insurance of Rs. 60/- for six employees and Rs. 120/- for six coolies, driver and cleaner. 8. In view of the aforesaid evidence available on record which clearly indicates that the vehicle involved in the accident is a goods vehicle. The deceased who was travelling upon the aforesaid vehicle was travelling in the capacity as second driver and while the regular driver was driving the truck, the truck was negotiating curve and the door of the cabin on the right side suddenly got opened and the deceased was thrown out. Consequently, therefore, the case put up by the insurance company that the aforesaid truck was used for transporting several persons to attend marriage function is not established as only one person was thrown out as per the charge-sheet which came to be filed after conclusion of the investigation as well as the facts and recital reveal from the FIR itself and it is no-bodys case that any other such claim of thrown out persons from the aforesaid truck has been filed. In this view of the matter, only deceased Virendrasinh Jadeja was thrown out in the vehicular accident in question and his heirs have filed the claims petition for compensation as he was travelling in the capacity as second driver. In this view of the matter, only deceased Virendrasinh Jadeja was thrown out in the vehicular accident in question and his heirs have filed the claims petition for compensation as he was travelling in the capacity as second driver. 9. Indisputably, neither the status of the deceased is recorded as gratuitous passenger or ordinary passenger in the aforesaid truck since he was travelling as second driver as per the say of the owner of the truck itself and that fact even also got corroborated from the driving licence produced on record and, therefore, the capacity of the deceased is clearly established that he was under the employment of owner insured and he was travelling as second driver. Normally, the goods vehicle used to ply for several hours and even during the night hours, the second driver is to be kept in the truck so that turn by turn regular as well as second driver can ply the truck. The owner insured has already paid premium for six employees, plus six coolies, driver and cleaner and, therefore, when the deceased was travelling in the capacity as second driver, his risk is covered and learned Tribunal has fallen in error in holding that he was travelling as illegally or gratuitous passenger and his risk is not covered. The finding recorded by learned Tribunal is not in consonance with the evidence available on record and learned Tribunal has arrived at the finding on presumptions and conjectures which cannot be sustained at law and liability of the insurance company is required to be fastened for payment of compensation to the heirs and legal representatives of the deceased. Accordingly, all the opponents are jointly and severally held liable to pay compensation. 10. On the point of quantum also, Mr. Ramnani, learned counsel for the appellants has clearly conceded that now when the liability to pay compensation is fastened upon the insurance company, he is not pressing for enhancement of any compensation and he is satisfied with the award made by learned Tribunal. Let the entire amount along with interest be deposited by the insurance company within stipulated period. 11. For the aforesaid reasons, the appeal is partly allowed. Let the entire amount along with interest be deposited by the insurance company within stipulated period. 11. For the aforesaid reasons, the appeal is partly allowed. The judgment and award passed by learned Tribunal so far as exonerating insurance company is set aside and consequently, liability to pay compensation is fastened upon the insurance company as well as driver and owner of the truck No. GJ 9T 7139. The judgment and award be modified to the aforesaid extent. There shall be no order as to costs.