JUDGMENT : N.V. Anjaria, J. 1. The six captioned appeals involve similar facts and common issue. Therefore the appeals were heard and considered together and are being disposed of by this common judgment. They arise from different MACPs filed by the claimants which arose from the same accident. 1.1 The first captioned First Appeal No. 3222 of 2005 arises out judgment and award dated 31st March, 2005 in MACP No. 212 of 1994 decided by Motor Accident Claim Tribunal (Aux.), Vadodara. First Appeal No. 2426 of 2007 is referable to MACP No. 100 of 1994 decided by the very Tribunal on 21st December 2006. First Appeal No. 2617 of 2010 arise from MACP No. 135 of 1994 decided by judgment and order dated 01st April, 2010 by the Motor Accident Claim Tribunal (Aux.), Vadodara, whereas First Appeal No. 2618-2620 of 2004 arise out of MACP No. 468-470 of 2004 respectively decided by common judgment and award dated 01st December, 2009 by the Tribunal at Vadodara. 2. At the outset, it may be stated that there is no challenge to the aspect of negligence as well as quantum of compensation by either side. The only question is whether the deceased could be treated as gratuitous passengers in respect of whom the insurance company has been disclaiming its liability. 3. The facts may be briefly stated. The accident took place on 04th September, 1993 in the night at about 08.00 o'clock. Applicant/s-claimant/s in each case were sitting in a Dumper being No. GBQ-7080 and that they were labourers returning after working at the site of construction. When they were reached near the sim of village Panchdevla the driver of the Dumper lost control, the Dumper which was loaded with Kapchi (gravels), turned turtle on the road. The claimants suffered grievous injuries and died. Insurance policy (Exh.43) indicates the additional payment of premium. The insurance company alleges the breach of the conditions of the policy. 4. Heard learned advocate Mr. Rajani Mehta for the appellant-insurance company in each of the petition, learned advocate Mr. Mohsin Hakim for respondent No. 1 and learned advocate Mr. D.N. Pandya for respondent Nos. 2 and 3. Insurance policy (Exh.43) indicates the additional payment of premium. The insurance company alleges the breach of the conditions of the policy. 4. Heard learned advocate Mr. Rajani Mehta for the appellant-insurance company in each of the petition, learned advocate Mr. Mohsin Hakim for respondent No. 1 and learned advocate Mr. D.N. Pandya for respondent Nos. 2 and 3. 4.1 Learned advocate for the appellant contended that the judgment and award of the Tribunal holding the insurance company liable and directing the insurance company to pay jointly and severally the compensation was erroneous in law in as much as, according to him, there was a breach of condition of policy and the claimants were not entitled to any compensation from the insurance company. Learned advocate for the appellant submitted that accident took place on 04th September, 1993 and in that context he relied on decision of the New India Assurance Co. Ltd. vs. Asha Rani, (2003) 2 SCC 223 . He further relied on the decisions of the Supreme Court in National Textile Corporation Limited vs. Nareshkumar Badrikumar Jagad, (2011) 12 SCC 695 in particular paragraph 19 thereof as well as Rajendra Shankar Shukla vs. State of Chhatisgarh, (2015) 10 SCC 400 for its paragraph 28, to submit that a ground even if new, when it is in the nature of legal plea, could be raised for the first time in the appellate proceedings. However this submission of learned advocate did not book merit in view of the facts and the position obtained in the present case. He also relied on Oxford Advanced Learner's Dictionary of Current English by A.S. Hornby, Seventh Edition, to show the meaning of construction and construction material. 4.2 On the other hand, learned advocate for the original claimants submitted that the fact position and the evidence were clearly suggestive that all the 14 persons were labourers, had been returning from the construction site and they could not be treated as gratuitous passengers so as to absolve the insurance company from its liability, even otherwise had not led any evidence in support of its plea. Learned advocate for the respondent No. 2 referred to decision in National Insurance Co. Ltd. vs. Lakhuben Punabhai Vaghari, 2006 (2) GLH 468 . 5. The proposition of law is well settled that it is the burden cast on the insurance company to prove the breach of condition in the policy. Learned advocate for the respondent No. 2 referred to decision in National Insurance Co. Ltd. vs. Lakhuben Punabhai Vaghari, 2006 (2) GLH 468 . 5. The proposition of law is well settled that it is the burden cast on the insurance company to prove the breach of condition in the policy. In Fahim Ahmad vs. Union of India, AIR 2014 SC 2187 , the Supreme Court observed thus: "Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No. 1-Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein." (Para 6) 5.1 The law was reiterated by relying the aforesaid decision in Fahim Ahmad (supra) by Division Bench of this court in judgment dated 08th June, 2015 in Bai Tejuba, Wd/o Prabhatsinh vs. Anilkumar Rameshbhai Patel being First Appeal No. 2573 of 2005 in which it is observed as under: "3. The issue involved in the present appeal is regarding onus of proving breach of the conditions of the policy that the passengers were being carried with the goods. It is contended that the Tribunal has erred in exonerating the respondent No. 2-Insurance Company from the liability. It is specifically contended that the Tribunal has erred in absolving the Insurance Company though it was not established on record by the respondent No. 2-Insurance Company that there was any breach of condition or that it was used for hire and reward. 4. Though the contentions have been raised, the issue is no longer res integra in view of various judicial pronouncements including the observations made by the Hon'ble Apex Court in case of Fahim Ahmad and Others vs. United India Insurance Co. 4. Though the contentions have been raised, the issue is no longer res integra in view of various judicial pronouncements including the observations made by the Hon'ble Apex Court in case of Fahim Ahmad and Others vs. United India Insurance Co. Ltd. and Others, AIR 2014 SC 2187 , wherein it has been specifically observed that burden is on the Insurance Company to establish about the breach of the conditions of the policy with sufficient evidence." 5.2 In the other judgment and award correspondent to MACP No. 10 of 1994 it was the case of the claimants by placing reliance on various decisions referred to in paragraph 19 of the judgment that the deceased was not a gratuitous passenger but he was travelling as labourer. The Tribunal observed that to controvert this position, the insurance company did not produce any evidence. This Court, observed the Tribunal, held on National Insurance Company Limited vs. Lakhuban Punabhai Vaghari, 2006 (1) GLH 177 stated that burden to prove that the claimants were gratuitous passengers is on the insurer. Thereafter it was stated by the Tribunal referring to the case on hand, as under: "22. In the instant case, it is the say of the applicants that the deceased was working as a labourer with Nila Construction and he was travelling in the Dumper which was belonging to the Nila Corporation. The driver had allowed the deceased to travel in the Dumper after completing the construction work. There is no contrary evidence against this evidence. Thus, the deceased was travelling in the Dumper as a coolie. Here in the present case, the Insurance Company has not led any evidence and also not examined any witnesses to prove that the deceased was travelling as a gratuitous passenger. Thus, the Insurance Company has failed to establish its case. Hence, in absence of evidence, the submissions made by the Insurance Company regarding gratuitous is not accepted." 5.3 In judgment and award dated 01.12.2009 common in MACP No. 468-470 of 2004, as far as the aspect of liability of the insurance company and the contents of the insurance policy was concerned, the following findings were recorded which are relevant. "20. As discussed above driver of the dumper was liable and responsible for the said accident. "20. As discussed above driver of the dumper was liable and responsible for the said accident. At the time of accident opponent No. 1 was driver and opponent No. 2 was owner of the said vehicle, opponent No. 3 was Insurance Company of the said vehicle, hence all the opponents are jointly and severally liable and responsible to pay the said compensation amount. 21. Ld. Advocate Smt. G.J. Parikh on behalf of the Insurance Company has opposed liability of Insurance Company. She has argued that, it is not covered the policy of the labourer, no premium has been recovered for the labourer, driver and owner of the vehicle have breach the terms and conditions of the policy, hence her Insurance Company is not liable and responsible to pay any compensation amount. Looking to the material available before me, and discussed above, I do not agree with the submission of the Ld. Advocate Smt. G.J. Parikh. On perusing the Insurance Policy of the vehicle, it is appeared that, it is not mentioned to bar policy for labourer, further Rs. 120/- has been shown in policy. For what purpose Insurance Company has charged Rs. 120/- is not mentioned in the policy. Thus, in stated circumstances, I am of the opinion that Insurance Company is also liable and responsible to pay stated amount, thus all opponents are jointly and severally to pay said compensation amount to the applicants." 6. On one hand the above position of law would not allow the acceptance of submission of learned advocate for the appellant, for, the insurance company has not discharged his burden in law and has miserably failed to lead any evidence to prove breach of condition. On the other hand, the evidence on record show that there were material on the basis of which the case of the claimants became acceptable. It is noted and observed by the Tribunal after perusal of the pleadings as well as the averments in the complaint, that the deceased were the labourers. They were engaged in construction activity. The construction activity by one company named Darshak Company was underway. For the said work, a Dumper of other company was hired. The said Dumper had been returning and in which the deceased persons were sitting who died because of injuries suffered as the vehicle in question turned turtle over them. They were engaged in construction activity. The construction activity by one company named Darshak Company was underway. For the said work, a Dumper of other company was hired. The said Dumper had been returning and in which the deceased persons were sitting who died because of injuries suffered as the vehicle in question turned turtle over them. 6.1 From the evidence of Dineshbhai Vasava (Exh.24) who was applicant of MACP No. 468 of 2004, of Chandubhai Vasava (Exh.26) who was applicant of MACP No. 469 of 2004 as well as of Leelaben Ganpatbhai (Exh.27) who was applicant in MACP No. 470 of 2004, clearly stated that all the persons were labourers and they had seated in the Dumper in question in capacity of labourers as they were going to construction site to take material at the site. It was stated that while they were travelling in such capacity, Dumper was driven in rash and negligent manner and since the driver lost control, the said vehicle met with an accident by turning turtle and the persons died in that accident. These were a clear suggestion that the travellers were the labourers who were in the Dumper having gone to construction site. 6.2 An evidence not to be overlooked in the nature of First Information Report dated 04th September, 1993 (Exh.38) which was registered by complainant who was survivor in the accident could be successfully relied on. The complainant stated that they all belong to one district and were relatives and were working under the contractor named Maheshbhai. The said contractor stated to them that they had to go for construction work of office building at Darshak company. Therefore the complainant and other 14 persons sitting in a Dumper went to the site at around 07.30 in the morning, the whole day they worked and at the end of the day the contractor announced that the Dumper had come in which all should sit. Sitting in the Dumper, they all started for Ranoli. The F.I.R. proceeded to state that Nr. Panchdevla Village, the Dumper fell down in a pit near the road and turned turtle and all came under the material gravel. The complainant could manage to come out, the others unfortunately died. Sitting in the Dumper, they all started for Ranoli. The F.I.R. proceeded to state that Nr. Panchdevla Village, the Dumper fell down in a pit near the road and turned turtle and all came under the material gravel. The complainant could manage to come out, the others unfortunately died. 6.3 Learned advocate for the original claimants relied on decision of the Supreme Court in Oriental Insurance Company vs. Premlata Shukla, (2007) 13 SCC 476 and submitted that under the provisions of the Indian Evidence Act the F.I.R. (Exh.38) could be relied on. It was submitted that the other side could not disclaim the contents of the F.I.R. He relied on another decision in National Insurance Company Limited vs. Rattani, (2009) 2 SCC 75 in which the admissibility of F.I.R. which was on record of the claim petition was considered. The Supreme Court observed that though ordinarily allegation made in the F.I.R. would not be admissible per se but the allegation made in the F.I.R. was part of the claim petition, therefore there was no doubt that the Tribunal as well as the appellate courts were entitled to look into the same. 6.4 In the aforesaid view, the F.I.R. (Exh.38) is indicative that the deceased were on the Dumper as employees-labourers of the company which was carrying out construction. They were employed in that regard. The employer gave notice to the insurance company which is on record (Exh.20). Deceased were shown as labourers. Learned advocate for the claimants could successfully submit that they were the employee-labourers of the construction company. From all the above circumstances which are supported by the documentary evidence as above, it is quite reasonable and logical to accept the plea of the claimants that the deceased were the labour-employees and were travelling in that capacity. 7. Summing up the above discussion, the insurance company failed to discharge the burden in law by not leading any evidence in support of its plea, and on the other hand there was an evidence going in favour of the claimants, it is not possible to hold that they were gratuitous persons travelling. In the facts and circumstances therefore, judgments and awards of Motor Accident Claims Tribunal, impugned in the captioned appeals, are maintained. All the appeals failed and stand rejected. Registry shall send back the Record & Proceedings to the court concerned forthwith. Appeal Dismissed.