JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. This appeal is filed under section 173 of the Motor Vehicles Act, 1988 (for short "the M.V. Act") by the appellant-Insurance Company to assail the judgment and award dated 12.11.2009 whereunder the appellant is directed to pay the compensation to the respondent No. 1 and 2, jointly and severally with respondent No. 3. 2. On 18.1.1998, the deceased Haresbhai Veljibhai was returning home with a bag of fertiliser in a tempo bearing registration No. GJ-4T-7855. The respondent No. 3 was a driver of the tempo and he was driving the tempo in a rash and negligent manner at a high speed as a result of which it got dashed with a stationery ST bus bearing registration No. GJ-4T-7855. The deceased Hareshbhai suffered fatal injuries in the accident and died. Respondents No. 1 and 2 being the legal heirs of the deceased filed MACP No. 270/1999 in the Motor Accident Claims Tribunal Bhavnagar, Fast Track Court No. 1 against respondent No. 3 driver of the tempo. The appellant with whom tempo was insured and deleted respondent No. 4 driver of the ST bus and respondent No. 5. Gujarat Road Transport Corporation being the owner of the ST bus. The Tribunal by impugned judgment and award directed the appellant and respondent No. 3 herein to pay sum of Rs. 3,21,000/- with 7.5% interest to the claim and exonerated the driver and the ST Corporation. The appellant-Insurance company wants to repudiate its liability to pay the compensation on the claimant on the ground that the deceased was traveling in a goods vehicle, therefore, he was a gratuitous passenger. 3. I have heard Mr. Nagesh Sood, learned advocate for the appellant, Mr. Umang Vyas, learned advocate for respondents No. 1-2 and Mrs. Vasavdatta Bhatt, learned advocate for respondent No. 5. Despite service there is no appearance on behalf of respondent No. 3. 4. Mr. Nagesh Sood, learned advocate for the appellant, vehemently submits that there is no evidence on record except oral evidence of respondent No. 1 He would also submit Exh. 50 complaint reveals that the tempo was full of passengers and the deceased was sitting on the panel of the tempo and the panchnama of place of accident Exh. 51, does not disclose the bag of fertiliser which was found at the place of accident. 50 complaint reveals that the tempo was full of passengers and the deceased was sitting on the panel of the tempo and the panchnama of place of accident Exh. 51, does not disclose the bag of fertiliser which was found at the place of accident. He therefore, urges that the Tribunal has fallen in error in recording the finding that the deceased was travelling with his goods. He, therefore, urges that the appeal may be allowed and the appellant should be exonerated from its liability to pay the compensation. 5. Mr. Umang Vyas, learned advocate for respondents No. 1 and 2 has supported the impugned judgment and award by relying upon the decision of this Court in the case of National Insurance Co. Ltd. v. Lakhuben Punabhai Vaghari and Ors. 2006 (2) GLH 468 . The onus is on the appellant to prove that the deceased was traveling with goods which onus is not discharged by the appellant-Insurance company. He, therefore, submits that the Tribunal has rightly saddled the liability of payment of compensation on the appellant-Insurance company jointly and severally with respondent No. 3 herein. He therefore, submits that the impugned judgment and award does not warrant interference and the appeal may be dismissed. 6. Ms. Vasavdatta, learned advocate for respondent No. 5 has supported the impugned judgment and award so far as it relates to the exoneration of respondent No. 5. 7. The solitary issue which is posed for consideration in this appeal is whether the Tribunal has rightly saddled the appellant-Insurance Company with the liability of payment of compensation on the premise that the deceased was travelling in the offending tempo in his capacity as the owner of goods i.e., bag of fertilizer. 8. The facts are not in dispute. The deceased Hareshbhai Veljibhai was the son of the respondents No. 1 and 2 herein was travelling in a chakda rickshaw which is an admittedly a goods vehicle on the fateful day. Unfortunately the offending chakda met with an accident with ST bus and the deceased suffered head injuries and died. It is the say of the respondents 1 and 2 that the deceased was returning home in the offending chakda with a bag of fertilizer and therefore, he was traveling in the goods vehicle in a capacity of the owner of the goods. 9. In support of the claim petition the claimants had produced Exh. It is the say of the respondents 1 and 2 that the deceased was returning home in the offending chakda with a bag of fertilizer and therefore, he was traveling in the goods vehicle in a capacity of the owner of the goods. 9. In support of the claim petition the claimants had produced Exh. 50, complaint which was lodged by the deleted respondent No. 4 driver of the ST bus and exh. 51, panchanama of place of accident, besides oral testimony of respondent No. 1. 10. Exh. 50 FIR reveals that the offending tempo in which the deceased was travelling was full of passengers. It further emerges from the FIR that the deceased was sitting on the railing of the tempo and since the tempo was driven at a high and excessive speed dashed with stationery ST bus and the deceased suffered fatal head injuries. It is an undisputed fact, that Exh. 51 panchnama of place of accident does not indicate that there was any bag of fertilizer in the tempo. 11. The Division Bench of this Court in the case of National Insurance Co. Ltd. v. Lakhuben Punabhai (supra) wherein paras 6 and 7 has held as under : "6. It is now settled by a catena of decisions of the Supreme Court that all defences are to be proved by the insurer like the appellant. In the face of this specific averment in the claim petitions that the persons were travelling alongwith their goods, the onus to disprove this averment rests upon the appellant Insurance Co. Had the appellant? Insurance Company discharged this onus, it would have gone a long way in proving whether, or not, the deceased persons were gratuitous passengers. Unfortunately, it has failed to do so and has not even brought the driver of the offending truck into the witness box. The burden to prove the breach of a term of contract rests squarely on the party which complains of such breach. The test which can be applied in such a situation would be that which party would fail if no evidence is led or the onus is not discharged. In the present case, the answer would be the appellant-Insurance Company. In this behalf, reference can be made to Narcinva V. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 and National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1. In the present case, the answer would be the appellant-Insurance Company. In this behalf, reference can be made to Narcinva V. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 and National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1. In National Insurance Co. Ltd. v. Swaran Singh (Supra) the Supreme Court has observed as under: 62. the proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi, 1996 ACJ 1044 (SC). 102 (i)********** (ii) ************** (iii) ************** (iv) The Insurance companies are, however, with a view to avoid their liability must not only establish the available defences raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefore would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case? 7. Applying the ratio of the law laid down by the Supreme Court, as referred to above, it is evident that the appellant, in the present case has failed to lead any evidence in order to prove that the deceased persons were gratuitous passengers who were travelling in an unauthorised manner in the truck and without any goods. The specific averment in the claim petition that the deceased persons were travelling in the truck alongwith their goods has not been dislodged during the entire proceedings before the M.A.C. Tribunal and in the absence of any evidence or material on record to the contrary, it has rightly been relied upon by the M.A.C. Tribunal to come to the conclusion that the deceased persons were travelling in the truck alongwith their goods and, as such they were not gratuitous passengers. Having failed to discharge the burden of proof in support of this contention, it is not open to the appellant at this stage to try and bring about a reappraisal of the evidence on facts. Having failed to discharge the burden of proof in support of this contention, it is not open to the appellant at this stage to try and bring about a reappraisal of the evidence on facts. There is no reason for this Court to go into the factual aspect of the matter or enter into a re-appraisal of evidence since the impugned judgment and award does not suffer from any illegality or perversity." 12. The moot question is even if it is assumed that the deceased was traveling in the tempo as the owner of the goods, it can still be said that he was not gratuitous passengers. In view of the admitted fact as emerged from Exh. 50 FIR that the tempo was full of passengers. Merely assailing in the claim petition and the oral evidence that the deceased was traveling with a bag of fertilizer without producing any other contemporaneous evidence to back up the assertion, in my opinion would not be enough to hold that the deceased was traveling in the goods vehicle as the owner of the goods. 13. The Supreme Court in the case of Oriental Insurance Company v. Premlata, (2007) 13 SCC 476, has held that if a party relies upon a document, then that background has to be considered in its entirety. The claimants themselves had produced Exh. 50 FIR and Exh. 51 panchnama in support of their claim petition. As noted in the foregoing reasons it emerges from Exh. 50 FIR that the tempo was full of passengers and the deceased was sitting on the railing of the tempo. Exh. 51 panchnama does not indicate the presence of fertilizer bag at the spot of the accident. Even otherwise also, even if it is assumed that the deceased was traveling with a bag of fertilizer, it would not be enough to consider him as a passenger traveling in a goods vehicle in a capacity of owner of goods only because he was traveling with a bag of fertilizer in a tempo full of passengers. 14. Under the circumstances, I am of the view that the Tribunal ought not to have saddled the liability of payment of the awarded compensation on the shoulder of the appellant-Insurance company jointly and severally with the respondent No. 3 herein. 15. For the foregoing reasons the appeal succeeds and is hereby allowed. 14. Under the circumstances, I am of the view that the Tribunal ought not to have saddled the liability of payment of the awarded compensation on the shoulder of the appellant-Insurance company jointly and severally with the respondent No. 3 herein. 15. For the foregoing reasons the appeal succeeds and is hereby allowed. The impugned judgment and award of the Tribunal is hereby modified and the appellant-Insurance company is exonerated from its liability of payment of compensation under the award. 16. By virtue of order dated 25.2.2011 20% of the deposit is released in favour of the claimant while 80% is invested in the fixed deposit. The Tribunal is, therefore, directed to return 80% of the amount to the appellant with a clarification that the appellant shall not recover the amount disbursed in favour of the claimants and it shall be at liberty to recover the same from the respondent No. 3 owner/driver of offending tempo by instituting appropriate proceedings in accordance with law. 17. The parties shall bear their own costs. R & P shall be sent back to the trial court forthwith.