JUDGMENT : R.P. Dholaria, J. 1. This appeal is preferred by the appellant-Oriental Insurance Co. Ltd. against the judgment and award dated 11/11/2009 passed by the Motor Accident Claims Tribunal (Auxiliary), Anand in Motor Accident Claim Petition No. 281 of 2006 (Old Motor Accident Claim Petition No. 360 of 2005). 2. Heard Mr. Anal Shah, learned advocate for the appellant. Though served, respondents chose to remain absent. 3. Brief facts of the case are that on 08/09/2005, at about 6:45 p.m., when son of respondent No. 1/1 and 1/2-original applicants went to Mahisagar river for submerging the idol of Lord Ganapati by travelling in tri-wheeler Tempo No. GJ-7-Z-5506 and when they were coming back, the driver of the said Tempo i.e. respondent No. 2-original opponent No. 1 drove his Tempo in a rash and negligent manner and thereby the Tempo turned turtle on the road and as a result of which Ganeshbhai came under the said Tempo and he died. The criminal complaint was also lodged before Chhani Police Station at Vadodara city. At the time of accident, deceased Ganeshbhai was 19 years old and was hale and hearty. Ganeshbhai was doing masonry work and other miscellaneous labour work and used to earn Rs. 2,100/- per month. Because of his sudden demise, both the original applicants have suffered permanent loss of future income as well as loss of love and affection of the deceased. As the accident took place due to gross negligence on part of driver of offending vehicle, original applicants have claimed compensation of Rs. 2,73,300/- under Section 163 of the Motor Vehicles Act, 1988 ('the Act' for short) from the opponents jointly. The learned Tribunal has vide impugned judgment and award, awarded compensation of Rs. 2,47,400/- against which the appellant-Insurance Company has preferred present appeal. 4. Mr. Anal Shah, learned advocate for the appellant -Insurance Company, has, inter alia, contended that the judgment and award dated 11/11/2009 passed by the learned Tribunal, holding the appellant/insurance company along with other respondents liable to compensate is contrary to the provisions of the Act. 2,47,400/- against which the appellant-Insurance Company has preferred present appeal. 4. Mr. Anal Shah, learned advocate for the appellant -Insurance Company, has, inter alia, contended that the judgment and award dated 11/11/2009 passed by the learned Tribunal, holding the appellant/insurance company along with other respondents liable to compensate is contrary to the provisions of the Act. It is further contended that the learned Tribunal has failed to consider that Ganeshbhai was travelling upon Tempo bearing registration No. GJ-7-Z-5506 as a passenger upon the goods vehicle which is not permissible as per the provisions of the Act as well as terms and conditions of the policy and therefore, no liability can be fasten upon the appellant-insurance company. Further it is contended that learned Tribunal has failed to consider that the appellant-insurance company is at liberty to take all contentions as provided under Section 149 (2) of the Act and the Tribunal is obliged to consider the same and record the finding thereon which is not done by the learned Tribunal and the decision rendered by the learned Tribunal suffers from vice of non consideration of the contentions raised before the Tribunal. Ultimately it is prayed that the appellant-insurance company be exonerated from any liability for payment of compensation as such. 5. Having perused the impugned judgment and award and record and proceedings of the case, it is noticed that indisputably deceased Ganeshbhai was traveling upon the tri-wheeler wheel vehicle being Tempo bearing registration No. GJ-7-Z-5506 which is an auto rickshaw pick up van which has been registered as pick up van as per the detail description given in the RC book produced before the learned Tribunal. The RC book as well as particulars mentioned in the policy clearly discloses that seating capacity is of one person only of the vehicle in question. Indisputably, the heirs and legal representatives of the deceased have preferred the aforesaid claim petition under Section 163(A) of the Act seeking compensation and they have pleaded that the deceased along with others i.e. about fifteen persons were travelling upon the aforesaid pick up van for submerging the idol of Ganeshji in Mahisagar river. It is also revealed from the record that about fifteen persons were travelling upon the aforesaid pick up van. It is also revealed from the record that about fifteen persons were travelling upon the aforesaid pick up van. After submerging idol of Ganeshji in the Mahisagar river, while returning to their respective houses, while the aforesaid Tempo was proceeding upon the Vadodara-Ahmedabad high way within the vicinity of village Padmala, at that time, the driver of the vehicle was driving the vehicle in high speed which resulted the Tempo turning turtle due to which the deceased got serious injuries and ultimately he succumbed to the injuries. 6. In view of the aforesaid factual position, Mr. Anal Shah, learned advocate for the appellant has argued that the deceased was traveling as an unauthorized passenger upon the aforesaid goods vehicle which is not permissible as per the provisions of law and travelling as passenger upon the goods vehicle clearly violates the terms of the policy and in that view of the matter, the appellant-insurance company cannot be fasten with the liability for the compensation as such. 7. In order to appreciate the contention raised by the learned advocate for the appellant-insurance company, on going through the petition, it appears that nowhere the petitioners have mentioned the status of the deceased who was traveling upon the aforesaid Tempo. Simply it was mentioned that he was traveling upon the aforesaid pick up rickshaw in order to submerge the idol of Ganeshji in the Mahisagar river. Nothing more has been pleaded. Against such pleadings, the insurance company, while filing written statement at Exh. 14, more particularly in para-7, has raised the contention that the deceased was traveling upon the aforesaid vehicle as a passenger and neither he was employee of the owner of the vehicle nor he was traveling as the owner of the goods. In that view of the matter, once the RC book itself makes it clear that there is a seating capacity of one person/driver only, no person is allowed to travel as a passenger upon the aforesaid auto rickshaw. That point has not been considered by the learned Tribunal. 8. In support of the arguments, Mr. Anal Shah, learned advocate has relied upon the decision of the Hon'ble Supreme Court in the case between National Insurance Co. That point has not been considered by the learned Tribunal. 8. In support of the arguments, Mr. Anal Shah, learned advocate has relied upon the decision of the Hon'ble Supreme Court in the case between National Insurance Co. Ltd. v. Swarnasing reported in 2004 (3) SCC 297 more particularly summary of finding as narrated in para 110 (ii) which reads as under: "(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act." 9. Further he has also placed reliance upon a decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and others reported in (2008) 1 SCC 423 , more particularly Para -23 which reads as under: "23. Upon considering the evidences on record, it was held: "As the permitted seating capacity of the lorry is only 3' including the driver and cleaner and as only one non-fare paying passenger as owner of goods can travel in the cabin and as the deceased has admittedly travelled in the cabin beyond seating capacity and contrary to the terms of the permit as well as Rule 252(2) of the Motor Vehicles Act. I am of the view that R-2 cannot be fastened with the liability to pay compensation along with R-1 to all the injured and legal representatives of deceased. At best it is liable to pay compensation jointly and severally along with R-1 only in respect of one non-fare paying passengers, who is the owner of the goods. As per the endorsement I.M.T. 14(b) unless additional premium is paid for the number of persons who travelled in the lorry, as owners. I am of the view that R-2 cannot be fastened with liability. As per the endorsement I.M.T. 14(b) unless additional premium is paid for the number of persons who travelled in the lorry, as owners. I am of the view that R-2 cannot be fastened with liability. Further all the petitioners and deceased cannot be deemed to have travelled as owners of the paddy as the paddy is said to be in bags and orally kept in loose in the lorry and it is enough if any one of them have travelled in the lorry on behalf of all, as owner of the lorry Rule 277(3) of A.P. Motor Vehicles Rules, clearly shows that no person shall be carried in the goods vehicle except as provided in the Rule under the statute and as the only person, who are permitted to carry in goods vehicles are the owner of hirer or bona fide employee of owner of hirer and total number of such persons, who could be carried in goods vehicles is not more than seven including the driver. As per Rule 252(2) person shall be carried in the cab of the vehicle beyond the seating capacity as per clause (2). No person shall be carried on the load or otherwise. Rule 4 empowers the R.T.A. to allow large number of persons to be carried. As the seating capacity of the lorry is only 3' as per Ex. B1 and B3 and as the risk of only owner of goods is covered by Ex. B2 policy, whereas about 40 to 42 persons travelled in the lorry by sitting on the load, which is not permitted and as there is no material to show that R.T.A. permitted carriage of more than seating capacity but on the other hand the permit is cancelled. I am in agreement with the contention of the learned counsel for the respondent that it cannot be fastened with the liability for compensation." 10. Indisputably, on going through the records and proceedings, it is clearly established that for the purpose of submerging idol of Ganeshji, about 15 persons were traveling upon the aforesaid rickshaw which is meant for carriage of goods and passengers are not permitted to travel upon the aforesaid vehicle except as the owner of goods as per the Act. Indisputably, on going through the records and proceedings, it is clearly established that for the purpose of submerging idol of Ganeshji, about 15 persons were traveling upon the aforesaid rickshaw which is meant for carriage of goods and passengers are not permitted to travel upon the aforesaid vehicle except as the owner of goods as per the Act. Indisputably, the claimants have not pleaded that the deceased was either traveling as owner of goods or he was traveling as the employee of the owner of the aforesaid vehicle in question. 11. In that view of the matter, the status clearly emerges out as the passenger upon the aforesaid vehicle which is in clear violation of the provisions of the Act as well as terms and conditions of the policy issued by the insurance company wherein in certificate-cum-policy schedule produced before the learned Tribunal clearly lays down the limitation as to use which reads as under: "Use only for carriage of goods within the meaning of Motor Vehicles Act. The Policy does not cover (a) Organised racing, Pace Making, reliability trials or speed testing (b) drawing a trailer except the towing (c) carrying passengers in vehicles except employees not exceeding the number permitted in registration document and coming under purview of WC Act 1923." 12. Thus, in view of the aforesaid factual position emerging from the record and proceeding of the learned Tribunal, the issue involved in this appeal is no more res integra. It is by now well settled legal position of law that once the learned Tribunal founds a person traveling in goods carriage vehicle as a passenger and not as an owner of goods or its representative, in such situation, insurer of goods carriage vehicle is not liable to pay compensation and learned Tribunal cannot fasten the liability upon the insurer to pay compensation and then to recover it from its insured. On going through the particulars of the policy, it is noticed that no additional premium is being levied by the Insurance Company for coverage of risk of any passenger travelling upon the vehicle involved in the accident. The risk of passenger travelling in goods carriage vehicle is not covered under Motor Vehicle Act, 1988. On going through the particulars of the policy, it is noticed that no additional premium is being levied by the Insurance Company for coverage of risk of any passenger travelling upon the vehicle involved in the accident. The risk of passenger travelling in goods carriage vehicle is not covered under Motor Vehicle Act, 1988. The Act has not envisaged risk of passenger to be covered under Section 147 of the said Act and law in this regard has been declared by the Hon'ble Apex Court in a case of Asha Rani (supra) and reiterated in other decisions. 13. For the reasons recorded above, the status of the deceased has been clearly established as unauthorized passenger upon the goods vehicle. Consequently therefore, the learned Tribunal ought not to have fasten the liability upon the appellant insurance company and in doing so, the learned Tribunal has committed error of law which requires to be set aside as such. 14. For the reasons recorded herein above, the appeal is allowed. Impugned judgment and award of the learned Tribunal is quashed and set aside qua the appellant insurance company only. Original opponents except present appellant-insurance company are liable to pay compensation jointly and severally. Resultantly the owner i.e. respondents No. 1 shall be liable to pay the entire compensation. 15. However, it is made clear that whatever the amount deposited by the appellant-insurance company before the Tribunal shall be refunded to the appellant-insurance company. If any amount out of the aforesaid deposited amount by the appellant-insurance company is disbursed to the claimants, the same shall not be recovered from the claimants. However, the appellant-insurance company shall be at liberty to recover the said disbursed amount from the owner of the vehicle in question by way of filing execution petition. Record and Proceedings be sent back to the concerned Tribunal forthwith. No order as to costs.