JUDGMENT : R.P. DHOLARIA, J. This is an appeal under Section 173 of the Motor Vehicles Act, 1988, wherein the Insurance Company challenged the judgment and award dated 08.09.2006 passed by the Motor Accident Claims Tribunal (Auxi.) in Motor Accident Claim Petition No. 55 of 2005. 2. Royal Sundram Alliance Insurance Company by way of preferring the present Appeal inter-alia contended that insured owner himself is the driver of the vehicle in question and he was not holding duly licensed to drive vehicle. Consequently, therefore, incident occurred due to his own negligence and therefore, no award could be passed against Insurance Company and claim itself is not maintainable under Chapter XI of the Motor Vehicles Act and further it is contended that there was no coverage of statutory risk envisaged by under section 147 of Motor Vehicle Act 1988 and no award could have been passed against the appellant Insurance Company and the liability fastened upon insurance Company requires to be set aside as such. 3. The brief facts of the case are as under: On 09.07.2004 the deceased Prakash Ramchandra Bharwani was going in his rickshaw to supply milk at village Galpader at 05:30 a.m early in the morning. When he reached at road crossing to Railway track in between Bhratnagar and Kailash Society in Gandhidham, suddenly a train no. 135 came and hit the auto rickshaw which was being driven by the deceased and the deceased died while he was crossing the railway track. 4. Heard learned advocate Mr. Mehta for the appellant and learned advocate Ms. Sadhana Sagar for the original claimant and Mahesh Bariya for respondent no. 3 Western Railway. 5. Learned advocate Mr. Mehta pointed out the ground urged in the memo of the appeal itself and contended to exonerate Insurance Company as such from the payment of any liability. Learned advocate Ms. Sadhana Sagar argued that accident occurred almost 13 years back and in the pursuance of award, amount of compensation also came to be deposited before the learned Tribunal and there appears no dispute that the vehicle in question was insured with the Commercial Vehicle Package Policy and even, insurance Company additionally recovered Rs. 100 premium to cover under contractual risk of the owner - driver to the extent of Rs. 2 lacs in nature of personal accident benefit. In the view of the matter, Ms. 100 premium to cover under contractual risk of the owner - driver to the extent of Rs. 2 lacs in nature of personal accident benefit. In the view of the matter, Ms. Sagar urged to the Court that in view of the previous decision of this Court may not be allowed and the claimant may not be relegated to another forum for seeking enforcement on contractual liability taking into consideration the humanitarian ground as such. 6. Learned advocate Mr. Mahesh Baria for the Western Railway pointed out that Western Railway has not preferred any appeal. 7. Having heard learned advocates for the respective parties and having gone through the records and proceedings and more particularly, policy particulars produced before the learned Tribunal clearly disclosed that vehicle in question came to be insured by the present Insurance Company and the policy came to be issued with effect from 15.06.2004 to 14.06.2005, commercial Vehicle Package Policy clearly indicated that the appellant Insurance Company also recovered Rs. 100 towards personal accident benefit and covered risk for the owner/driver and also under took in respect of the owner/driver risk arising out of any occurrence and total liability to sum of Rs. 2 lacs. 8. In view of the aforesaid factual position contended by the learned advocate Mr. Mehta, law laid down by the Court in the previous decisions is reported in 2017 ACJ 1800 in case of United India Insurance Company Ltd. v. Legal heir of deceased Barot Bharahtbhai Arvindbhai, would be squarely applicable to the facts and circumstances of the present case and claim would not be maintainable as laid down the aforesaid decision. However, taking into consideration that the claimant filed claim petition under section 166 of the Motor Vehicles Act not only against the present appellant Insurance Company but has also joined Western Railway, as it is also involved in the accident. Consequently, therefore, in view of the peculiar facts and circumstances of the case, and since almost about 13 years have already passed and Insurance Company has already assumed risk to the extent of Rs. 2 lacs by way of recovering the additional premium from the insurer as such and the Insurance Company is duty bound to discharge the contractual liability to the aforesaid extent to Rs. 2 lacs by way of recovering the additional premium from the insurer as such and the Insurance Company is duty bound to discharge the contractual liability to the aforesaid extent to Rs. 2 lacs, in that view of the matter, this Court is not inclined to dismiss the present claim petition and relegate to the claimant to take recourse before the another forum for enforcing contractual liability. But, in the larger interest of justice this Court deems it appropriate to direct the present appellant Insurance Company to discharge its liability to extent of Rs. 2 lacs along with interest and costs and rest of the liability fastened upon by the learned Tribunal shall be discharged by the Western railway with the aforesaid clarification. 9. Appeal stands allowed to the aforesaid extent. In the result appeal is partly allowed and Insurance Company shall be liable to pay compensation to the extent of Rs. 2 lacs alongwith interest and costs therein and if any, excess amount is deposited by the appellant Insurance company, shall be refunded forthwith and deficit amount shall be recovered from the Western railway. If any, amount lying before this Court shall be transmitted to the learned Tribunal. 10. It is made clear that in view of the aforesaid decision of this Court, Tribunal have no jurisdiction to entertain such claim but taking into consideration peculiar facts and circumstances wherein not only motor vehicle insured with the present insurance company is involved but also the Western Railway was also involved and due to such facts and circumstances of this case, aforesaid order is passed and that shall not be treated as a precedent. 11. The registry is directed to return the R & P, if any, forthwith to the learned Tribunal.