JUDGMENT : B.N. KARIA, J. 1. The present appellant in both these appeals has preferred these appeals against the common judgment and award dated 18.10.2008 passed by the learned Motor Accident Claims Tribunal (Aux.), Fast Track Court No. 3, Palanpur (for brevity, 'the Tribunal') in Motor Accident Claim Petition (MACP) Nos. 279 of 1992 and 280 of 1992, whereby, the Tribunal was pleased to award an amount of Rs.1,94,200/- to the claimants of Motor Accident Claim Petition No. 279 of 1992 and Rs.1,69,000/- to the claimants of Motor Accident Claim Petition No. 280 of 1992, along with interest @ 9% per annum from the date of application till realization of the amount, holding jointly and severally liable to pay the same to all the opponents therein. 2. Short facts of the present case may be referred as under: 2.1 On 23.04.1992, the family members of the respective claimants of both the petitions including deceased Ratanben and Maniben were travelling in a tempo bearing registration No. GJ- 3T-5759 of the ownership of opponent No. 2, as owner of the goods. That, at about 2:30 a.m., on Suigam – Limbuni road, within the jurisdiction of Suigam police station, the driver of the tempo drove his vehicle rashly and negligently, as a result of which, the tempo turned turtle. Ratanben and Maniben, travelling in the said tempo, were severely injured. They were shifted to primary health center at Suigam and during the treatment, they succumbed to the injuries. As per the averments made in the respective claim petitions, the age of Ratanben was 50 years and by doing agriculture work, she was earning Rs.1,500/- per month. Age of Maniben was 20 years at the time of accident and she was doing labour work and was earning Rs.1,500/- per month only. That, the family members, the claimants have suffered great mental shock on account of sad demise of their family members as well as lost love and affection. That, they had spent huge amount towards medical treatment of the deceased and funeral ceremony. Accordingly, they had prayed to pass an award in favour of the claimants to the tune of Rs.3 lakh along with interest in each petition holding liability of the opponents jointly and severally. 2.2 The Tribunal issued notice to the opponents. The opponent No. 2 appeared through his advocate but did not file the written statement. Accordingly, they had prayed to pass an award in favour of the claimants to the tune of Rs.3 lakh along with interest in each petition holding liability of the opponents jointly and severally. 2.2 The Tribunal issued notice to the opponents. The opponent No. 2 appeared through his advocate but did not file the written statement. The opponent No. 3 also appeared before the Tribunal and filed its written statement vide exh. 22 in MACP No. 279 of 1992 and exh. 24 in MACP No. 280 of 1992. The contents averred by the claimants in their respective petitions were mainly denied by this opponent stating that there was no valid driving licence with the driver. It was further contended that motor vehicle tempo involved in the accident was a goods vehicle and more than two persons were sitting in the vehicle at the time of accident and therefore, it was a clear breach of the policy condition and no liability of the insurance company can be fastened by the Tribunal. Ultimately, it was urged by this opponent to dismiss the claim petition with costs. 2.3 The learned Tribunal, framed the Issues and after considering the evidence produced on record and the arguments advanced by the learned advocates for the respective parties, was pleased to pass the award, as aforesaid. The present appellant, being aggrieved and dissatisfied with the aforesaid judgment and award, has preferred these appeals. 3. Heard, Mr. H. G. Mazmudar, learned counsel for the appellant and Mr. Anmol Purohit, learned counsel for the respondent Nos. 1 to 5 – original claimants. 3.1 It was submitted by the learned counsel for the appellant that the impugned judgment and award passed by the Tribunal is against the evidence on record and merits of the case. It was further submitted that there was clear breach of condition of insurance policy as the vehicle was not for hire and reward. The deceased were travelling in the goods vehicle and therefore, the insurance company cannot be held liable and ought to have been exonerated. It is further submitted that the FIR, wherein, it was specifically admitted that about 12 persons had hired the tempo to go to their homes and they were travelling as paid passengers in the goods vehicle, was not properly considered by the Tribunal. It is further submitted that the FIR, wherein, it was specifically admitted that about 12 persons had hired the tempo to go to their homes and they were travelling as paid passengers in the goods vehicle, was not properly considered by the Tribunal. That, this accident was occurred on 23.04.1992 before the amendment in 1994 in the MV Act and that, no passenger or owner of the goods were permitted to travel in the goods vehicle. That, the Tribunal has committed an error in awarding the compensation holding the liability of the insurance company. In support of his arguments, learned counsel has placed reliance on a decision in the case of Mallawwa (Smt.) and Others V. Oriental Insurance Co. Ltd. and Others, reported in (1999) 1 SCC 403 and another decision in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, reported in AIR 2003 SC 607 . It was further argued that the question of law, if any, could be raised by the insurance company at the appellate stage. It can be permitted if it goes to the root of the case. On this issue, the learned counsel for the appellant has relied upon a decision in the case of Oriental Fire and General Insurance Co. V. Aminbhai Pirmohomad Master and Others, reported in 1986 (2) GLR 986 . 4. From the other side, learned counsel for the respondents – claimants supported the judgment and award passed by the Tribunal in favour of the claimants as well as the findings arrived at by the Tribunal arguing that the Tribunal has clearly found that deceased Ratanben and Maniben were travelling as owner of the domestic goods in the tempo and therefore, the argument made before the Tribunal by the insurance company that they were travelling as a passenger was not accepted as not maintainable. It was further submitted that this Court in a case of Oriental Insurance Company Limited V. Galbiben Dosajibhai Manjibhai, reported in 2009 (0) GLHEL-HC 221029 has taken a view that, though, the accident was occurred prior to amendment in section 147 of the MV Act, liability of the insurance company was upheld by this Court. That, no different view can be taken by this Court. In support of his argument, the learned counsel has further relied upon a decision in the case of Manager, National Insurance Co. That, no different view can be taken by this Court. In support of his argument, the learned counsel has further relied upon a decision in the case of Manager, National Insurance Co. Ltd. V. Saju Paul and Another, reported in 2013 LawSuit (SC) 8 = (2013) 2 SCC 41 and argued that considering the peculiar facts of the case, direction should be issued to the insurance company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle. That, the claimant cannot be compelled to struggle further for recovery of the amount. That, in the instant case also, the insurance company should be directed to pay the compensation to the claimants and recover from the owner. The learned counsel for the respondents–claimants has further relied upon a decision of this Court in the case of National Insurance Co. Ltd. V. Laxmanbhai Narubhai, reported in 2018 (0) AIJEL-HC 239193, wherein also, the accident had occurred before the amendment in the year 1994. This Court took the view that the insurance company shall first pay the awarded sum to the claimant and then recover the same from the driver and owner of the vehicle involved in execution proceedings arising in this very case as per the law laid down in para 26 of Saju P. Paul's case (supra). 4.1 It was further argued that the ground raised by the appellant in para (F) of the appeal memo of not considering the FIR and the pleadings wherein it is specifically admitted that they all (about 12 persons) had hired the tempo to go to their homes and they were travelling as paid passengers in the goods vehicle was never raised by the insurance company in the written statement filed before the Tribunal and therefore, it cannot be permitted to raise this ground before this Court. Ultimately, it was requested by the learned counsel for the respondents – claimants to dismiss the appeals and confirm the impugned judgment and award. 5. Having considered the facts of the case and perusing the record of the Tribunal, this Court would like to refer the complaint produced at Exh. 33 and the averments made in the same by the complainant. This complaint was lodged by Shri Rajabhai Harijan of village: Bhatasana, taluka: Vav on 23.04.1992 before the police. 5. Having considered the facts of the case and perusing the record of the Tribunal, this Court would like to refer the complaint produced at Exh. 33 and the averments made in the same by the complainant. This complaint was lodged by Shri Rajabhai Harijan of village: Bhatasana, taluka: Vav on 23.04.1992 before the police. As per the averments made in the complaint, he himself and other family members decided to return their homes and therefor, hired one tempo of the ownership of Patel Govindbhai of village: Vasai fixing the amount of Rs.650/-. They started their journey at about 8:00 p.m. from Motipura. The driver of the tempo was Raval Bakabhai Gandabhai of village: Delwada of Vijapur taluka and cleaner was Raval Chandubhai. The complainant and one Harijan Viha Teja set adjoining the driver and other persons were sitting in the back portion of the tempo. The tempo was loaded with bags of Wheat and domestic articles of their ownership. At bout 2:30 a.m. nearby village: Limbuni, towards Suigam, suddenly, the tempo turned turtle and the persons sitting in the backside of the tempo were thrown away from the vehicle. The complainant himself, Viha Teja and the driver of the tempo sustained some injuries. They were shifted to primary health center at village: Suigam for treatment. Ratanben and daughter of the complainant Maniben had expired due to the injuries sustained by them. The registration number of the tempo was declared as GJ-3/5759. As per the averments made in the complaint, driver Bakabhai Gandabhai drover the motor vehicle tempo rashly and negligently endangering the human life and therefore, it turned turtle. The complainant and other persons sitting in the tempo received injuries resulting into death of Ratanben and Maniben. The accident part was never denied by the insurance company in the written statement. From the record, it appears that complainant Rajabhai Harijan was examined at Exh. 32. He has supported the contents raised in the complaint stating that he himself and other family members were travelling as owner of the goods in the motor vehicle tempo bearing registration No. GJ-3-5759 on the day of the accident. He has deposed the income, age of the deceased and loss of future income. In the cross-examination, he has admitted that at the time of accident, 6 to 7 persons of his family were travelling in the tempo. He has deposed the income, age of the deceased and loss of future income. In the cross-examination, he has admitted that at the time of accident, 6 to 7 persons of his family were travelling in the tempo. This tempo was hired by fixing an amount of Rs.650/-. He denied that he himself and his wife and daughter were travelling in the motor vehicle tempo as passengers. The Panchnama of the place of accident, Exh. 34 was also produced on record. It appears that surrounding the area of place of accident on the road, the broken bags of Wheat as well as the domestic articles were also found. The Goods Carriage Permit of the tempo was produced vide Exh. 36. It was undisputed that the motor vehicle involved in the accident was a goods vehicle. In column No. 12 of this document, it is clearly stated against the nature of goods to be carried as a public career, 'to carry goods on hire'. It was not the case of the claimants that the complainant or the family members were travelling in the tempo as owners of the goods for selling. As per the complaint, all the family members were returning to home leaving their labour work and hired the tempo and not for selling the goods. It appears from the insurance policy produced at Exh. 41 that it clearly restricts the limitations as to use of this vehicle. In column No. 3, it was clearly provided, 'use of carrying passengers in the vehicle except employees (not exceeding six in number coming under the purview of the W. C. Act). Use, only for carriage of goods within the meaning of the Motor Vehicle Act'. From this condition, it cannot be said that any passenger was permitted to travel in the goods vehicle. However, if the case of the claimants is accepted that the deceased were travelling as owners of the goods, the condition imposed by the insurance company would not permit to travel any passenger except employees. Division Bench of this Court in the case reported in Aminbhai Pirmohomad Master and Others (supra) has observed, 'the question which is raised by filing the appeal goes to the very root of the matter. Division Bench of this Court in the case reported in Aminbhai Pirmohomad Master and Others (supra) has observed, 'the question which is raised by filing the appeal goes to the very root of the matter. It is true that the insurance company did not raise any such contention, either in the written statement or at any stage before the Tribunal, it cannot be said that the insurance company in any way made any concession that it was liable to pay. The question of waiver also does not arise because this is a pure question of law which again goes to the root of the matter'. Here also, in the written statement filed by the insurance company before the Tribunal, it was contended in para 3 that motor vehicle GJ-3-5759 is being goods carriage it was used as a transport vehicle which was carrying more than 12 persons including the applicant therefore, opponent No. 1 has committed breach of terms and conditions of policy and breach of MV Act and Rules there under and therefore, the opponent is not liable for the claim. In the appeal memo, in para (F), it is stated that, the Tribunal did not consider the FIR and the pleading wherein it is specifically admitted that, they all (about 12 persons) had hired the tempo to go to their homes and they were travelling as paid passengers in goods vehicle. The contention raised by the present appellant in para (F) of the appeal memo would certainly cover the contention raised in para 3 of the written statement, Exh. 22. A specific contention as alleged in the complaint would not require to be disputed in the written statement. The issue of law permitted to the insurance company was raised and contended in the written statement. If we consider the decision of this Court, as referred herein above, such a contention would certainly permit the insurance company to raise before this Court. In the instant case, the said contention was available to the insurance company and was specifically raised in the written statement. It cannot be said that for the first time, the insurance company has raised this contention before this Court. In the instant case, the said contention was available to the insurance company and was specifically raised in the written statement. It cannot be said that for the first time, the insurance company has raised this contention before this Court. If we consider another decision in the case of Mallawwa (Smt.) and Others (supra), under Section 95(1)(b)(i) and proviso (ii) (as amended in 1969), the question was whether the passenger was carried for hire or reward within the meaning of proviso (ii), wherein, it was held that, 'persons travelling in goods vehicles, whether owners of the goods or passengers on payment of fare or gratuitous passengers, who died in accident met with by such goods vehicle, not covered by proviso (ii). Therefore, the insurer of the goods vehicle is not liable to pay the compensation for their death'. In an another decision in the case of Asha Rani (supra), prior to amendment of 1994 in Section 147 of the Act, the question of liability of insurer was raised. The occupants travelling in the motor vehicle were rightly owner of the goods or his authorized legal heirs in goods vehicle. He died or suffered bodily injuries in accident. The Hon'ble Apex Court observed in para 9 as under: “It is true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute. But a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as if stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier. The expression 'including owner of the goods or his authorized representative carried in the vehicle which was added to the pre-existed expression 'injury to any person' cannot be construed as either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of S. 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorized representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. Therefore in a case prior to amendment the insurer was not liable for paying compensation to the owner of goods or his authorized representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury.” 5.1 It was held that insurer would not be liable to pay the compensation. Here also, admittedly prior to amendment in Section 147 of the MV Act, 1994, this accident had occurred in 1992. Therefore, the liability of paying compensation as held by the Tribunal could not sustain and hence, the impugned judgment and award would require to be modified. 5.2 The learned counsel while drawing attention of this Court to the decision in the case of Manager, National Insurance Co. Ltd. (supra), submitted that bodily injury was caused to the claimant who was travelling in the goods vehicle as a spare driver though he was employed as a driver in another vehicle owned by owner of vehicle under policy of insurance. The Hon'ble Apex Court held that, 'insurance company could not be made liable to pay compensation. However, considering the facts of the case that accident had occurred in 1993 and claimant was 28 years old at the time of accident and now about 48 years, he had not got any compensation due to stay order passed by the Apex Court, considering the peculiar facts of the case, direction was issued to the insurance company to first satisfy the awarded amount in favour of the claimant and recover the same from owner of the vehicle'. In the cited case also, the liability of the insurance company was denied to pay the compensation considering the fact that the driver was travelling in a goods vehicle. In the decision in the case of Galbiben Dosajibhai Manjibhai (supra), the accident took place before the amendment in Section 147 of the Act. It was the contention of the insurance company that because of amended Section 147 was after the accident had occurred, the insurance company is not liable to pay the compensation to the claimants. In the decision in the case of Galbiben Dosajibhai Manjibhai (supra), the accident took place before the amendment in Section 147 of the Act. It was the contention of the insurance company that because of amended Section 147 was after the accident had occurred, the insurance company is not liable to pay the compensation to the claimants. The Tribunal was pleased to award the compensation to claimants and the insurance company was held liable to make the payment which was challenged before this Court, wherein, it was observed that the insurance company had not taken the said contention before the Tribunal and not pressed into service by the learned advocate of the insurance company, was not rightly examined by the claims Tribunal and in doing so, claims Tribunal has not committed any lapse or error requiring interference of this Court. The appeal preferred by the insurance company was dismissed by this Court. 5.3 Here, it is not the case of the insurance company or the claimants. The issue of not liable to pay the compensation to the claimants was certainly raised in the written statement filed vide Exhs. 22 and 24 respectively as well as before this Court. This issue was also pressed by the insurance company in the argument. There was no question of not pressing into service of this issue by the insurance company. Before the amendment in 1994 as held by the Hon'ble Apex Court in two decisions referred herein above, the liability of the passengers or his authorized representative carried in goods vehicle cannot be fastened by the Court. There was no question of not pressing into service of this issue by the insurance company. Before the amendment in 1994 as held by the Hon'ble Apex Court in two decisions referred herein above, the liability of the passengers or his authorized representative carried in goods vehicle cannot be fastened by the Court. In another decision of this Court in the case Laxmanbhai Narubhai (supra), in para 8, this Court has held as under: “In view of the above facts and circumstances, when principle of pay and recover is already there since Baljit Kaur (supra), and when it is repeatedly followed by diferent benches of Supreme Court, the only benefit that may be granted to the appellant herein is to the effect that if at all they are given to execute their liability to indemnify the person with whom they had entered into privity of contract of insurance, they may initiate appropriate proceedings under the Contract Act for the purpose, but so far as claimants are concerned, they are responsible and liable to pay compensation to the victims, considering the settled legal position that victims of road accident are not litigants and that this is a benevolent legislature in their favour, whereby, the basic aim of the legislature is to see that no victim of any such mishap has to suffer for no fault on their part.” 5.4 Certainly, an order of pay and recover of amount of compensation can be passed against the insurance company by exercising the powers under Article 142 of the Constitution of India by the Hon'ble Apex Court. This Court, in the decision in First Appeal Nos. 246 and 247 of 2011 has taken a view relying upon the decision rendered in First Appeal No. 2121 of 2008 that the direction to pay the amount first and then to recover such amount can only be passed by the Supreme Court exercising powers conferred under Article 142 of the Constitution of India to do complete justice. That, pay and recover order cannot be passed by any Court or Tribunal. Thus, it is clear that pay and recover order can only be passed by the Supreme Court exercising powers under Article 142 of the Constitution of India and no other Court or Tribunal including the High Court can pass such an order. That, pay and recover order cannot be passed by any Court or Tribunal. Thus, it is clear that pay and recover order can only be passed by the Supreme Court exercising powers under Article 142 of the Constitution of India and no other Court or Tribunal including the High Court can pass such an order. Considering the view taken by the this Court in different cases, no order of pay and recover can be passed against the appellant as admittedly, the respondents – claimants were travelling as gratuitous passengers paying the fare for travelling. 5.5 In the case of National Insurance Company Ltd. V. Rattani & Others, rendered in Civil Appeal No. 7399 of 2008, the victims of the accident were travelling in the truck as gratuitous passengers and therefore, the Hon'ble Apex Court viewed that the insurance company would not be liable to pay the compensation to the claimants. After the amendment of 1994 in the Motor Vehicles Act, the effect of the provisions contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative would remain the same. Although, the owner of the goods or his authorized representative would now be covered by the policy in insurance in respect of the goods vehicle but it was never the intention of the legislature to provide for the liability of the insurer with respect to the passengers, especially, gratuitous passengers, who were neither contemplated at the time of contract of insurance was entered into nor was any premium paid to the extent of benefit of insurance to such category of people. Therefore, in the facts and circumstances of the case, this Court has no hesitation to hold that the claimants were travelling in the tempo as a gratuitous passengers and in that view of the matter, the appellant herein could not be liable to pay the amount of compensation to the claimants. 5.6. In First Appeal No. 1410 of 2009, wherein, as per the facts of the case, the victim was travelling to carry his own bricks from Motagundana village to Dhoraji and since he had to load and unload the bricks at both the ends, he was travelling in the rickshaw as owner of the goods. A few suggestions in cross-examination were placed that there was no evidence to prove him as owner of the goods. A few suggestions in cross-examination were placed that there was no evidence to prove him as owner of the goods. This Court held that there would be no change in the situation more particularly, when other documentary evidence, which was otherwise admitted by the insurance company and disclosure by independent witness that the victim was travelling in the vehicle as an owner of the goods. Here, there was no case of the claimants from the beginning that they were travelling in the tempo as owners of the goods. It was the case of the claimants in the claim petition as well as in the complaint that they were travelling in the tempo as a fare paying passenger and therefore, the benefit of amended provision under Section 147 (any person) would not be available to the claimants as per the facts of the case and this Court is unable to accept the prayer made by the learned counsel for the respondents – claimants to order against the insurance company to satisfy the award by paying the compensation to the claimants and then to recover the same from the driver and owner of the vehicle involved in the accident. 6. In view of the aforesaid observations and discussion, present appeals succeed and are allowed accordingly. The impugned judgment and award passed by the Tribunal is hereby modified to the extent as aforesaid and the appellant – insurance company is hereby exonerated from paying the compensation to the original claimants, holding liability to pay the compensation of original opponent Nos. 1 and 2 only. However, it is clarified that if any amount is withdrawn by the claimants from the Tribunal out of the amount deposited by the appellant - insurance company, the same shall not be refunded by the claimants to the appellant, but, the appellant shall be at liberty to recover the said amount along with interest accrued thereon from the insured following due procedure of law. Registry to return the R&P to the concerned Tribunal forth with.