JUDGMENT : 1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 31.12.2005 passed by the Motor Accident Claims Tribunal (Aux.), 2nd Fast Track Court, Dahod (hereinafter referred to as “the Tribunal”) in M.A.C.P. No.1523 of 2004 and 1524 of 2004 which came to be disposed of by common judgment and award, the appellant – United India Insurance Company Limited has preferred the present appeals. 2. The same set of facts was adduced before the Tribunal and the Tribunal has heard the claim petitions together and so also, the present appeals are heard together and disposed of by this common judgment and order. 3. Following facts emerge from the record of the appeals. 3.1 That the accident took place on 22.06.1996 at about 3.45 p.m. near Bordagota Dungar and Slop of Kabutari Dam. It is the case of the claimants that the deceased Ashutoshbhai and Manuben were travelling in Tractor bearing registration No.GJ-10- A-9888 which came to be driven by opponent no.1 in rash and negligent manner, due to which, tractor turned turtle and as a result of which the deceased sustained serious injuries and died on account of the same. An FIR came to be lodged at Exhibit 23 before the jurisdictional police and the present claim petitions were filed by the legal heirs of the original claimants under Section 166 of the Act before the Tribunal and claimed compensation of Rs.4,10,000/- and Rs.3,20,000/- respectively. 3.2 After considering the oral as well as documentary evidence led by the parties, the Tribunal has partly allowed the claim petitions by awarding Rs.2,54,000/- and Rs.1,54,000/- respectively as compensation in favour of the claimants. 4. The original claimants have relied upon the following oral as well as documentary evidence. 1. F.I.R. Exhibit 34 2. Panchnama of scene of occurrence Exhibit 35 3. P. M. Report of Asutosh Exhibit 36 4. Policy of the vehicle Exhibit 37 5. P.M. Report of Manuben Exhibit 38 5. Heard Mr.Vibhuti Nanavati, learned counsel appearing for the appellant – Insurance Company, Mr.U. M. Shastri, learned counsel appearing for respondent no.1 and Mr. M. A. Bukhari, learned counsel appearing for respondent no.4. 6. Mr.Nanavati, learned counsel appearing for appellant – Insurance Company has submitted the same facts which are narrated in the memo of appeals. Heard Mr.Vibhuti Nanavati, learned counsel appearing for the appellant – Insurance Company, Mr.U. M. Shastri, learned counsel appearing for respondent no.1 and Mr. M. A. Bukhari, learned counsel appearing for respondent no.4. 6. Mr.Nanavati, learned counsel appearing for appellant – Insurance Company has submitted the same facts which are narrated in the memo of appeals. He has submitted that the Tribunal has misinterpreted the definition of tractor which was involved in the accident and held the insurance company liable to satisfy the award. He has submitted that under the insurance policy and under the provisions of the Motor Vehicles Act, the insurance company cannot be held liable to pay compensation. He has submitted that the definition of tractor contained in Section 2(11) of the Motor Vehicles Act means ‘motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion) but excludes a road roller’ and in the present case, the tractor involved bearing registration No.GJ-17-A-9888. He has submitted that without prejudice to the generality of the contentions and without admitting liability, whatsoever, the Tribunal ought to have deducted 1/3rd towards personal expenses of the deceased. On all these grounds, He has submitted that the present appeal deserves to allowed. 6.1 Mr.Nanavati, learned counsel appearing for the appellant – insurance company has relied upon the decisions in the case of (i) National Insurance Company Limited Vs. Amrutaben Rajusing Darbar (Zala) dated 17.02.2020 rendered in First Appeal No.3377 of 2017 and allied appeals by the Division Bench of this Court and (ii) The New India Assurance Company Limited Vs. Sureshkumar Shankralal Darji dated 15.06.2017 rendered in First Appeal No.4601 of 2007 and 4602 of 2007 by the Division Bench of this Court. 7. Mr.Shastri, learned counsel appearing for respondent no.1 and Mr.Bukhari, learned counsel appearing for respondent no.4 have supported the impugned judgment and award and submitted that the Tribunal has not committed any error of facts and law in awarding compensation. They have submitted that the appeals being meritless deserves to be dismissed. 7.1 Mr.Shastri, learned counsel appearing for respondent no.1 has relied upon the decisions in the case of (i) United India Insurance Company Ltd Vs. Vajabhai Ratabhai Dabhi since deceased through Heirs and others dated 02.12.2021 rendered in First Appeal No.3345 of 2011 by the Coordinate Bench of this Court, (ii) Kishan Gopal and other Vs. 7.1 Mr.Shastri, learned counsel appearing for respondent no.1 has relied upon the decisions in the case of (i) United India Insurance Company Ltd Vs. Vajabhai Ratabhai Dabhi since deceased through Heirs and others dated 02.12.2021 rendered in First Appeal No.3345 of 2011 by the Coordinate Bench of this Court, (ii) Kishan Gopal and other Vs. Lala and others reported in (2013) ACJ 2594, (iv) Shivaraj Vs. Rajendra reported in (2018) 10 SCC 432 , (iii) S. Iyapan Vs. United India Insurance Company Limited and other reported in (2013) 7 SCC 62 , (iv) Shivawwa and another Vs. Branch Manager, National Insurance Company Limited reported in 2018 ACJ 1288 , (v) Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others, (2018) 9 SCC 650 . 8. I have perused the record and proceedings of the case and materials placed on record. I have gone through the impugned judgment and award passed by the Tribunal and considered the submissions canvassed by the learned counsel appearing for the learned counsel appearing for the respective parties. 9. In the case of Sureshkumar Shankralal Darji (supra), the Division Bench of this Court has held that in the present case, the complaint is filed by the husband of the victim where in his cross-examination he has admitted that they were not labourer engaged by the owner of the tractor, but they took the lift in the vehicle and, therefore, they were sitting as unauthorized passenger in the tractor attached to the trolley. 10. The insurance policy of the tractor being registration No. GJ- 17-A-9888 involved in the accident was produced at Exhibit 37. As per the terms and conditions of the commercial vehicles “B” Policy, which relates to goods carrying vehicles, the Insurance Company shall not be liable to make any payment in respect of any accidental loss or damage suffered which the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs. Undisputedly, the deceased was travelling in a goods vehicle and the policy was of “B” type policy, she was not permitted to travel in the motor vehicle involved in the accident, and therefore, liability of the appellant Insurance Company cannot be held by the Tribunal. 11. Hence, the Tribunal has grossly erred in fixing liability of the compensation on the part of the appellant. 12. 11. Hence, the Tribunal has grossly erred in fixing liability of the compensation on the part of the appellant. 12. In a similar case set of facts in the case of New India Assurance Co. Ltd. v. Heirs and Lrs of deceased Pravinsinh Ranubha Zala, reported in 2013 (2) GLR 1580 , the Division Bench of this Court has taken a similar view, exonerating the Insurance Company and as per the facts of this case, the victim took the tractor on rental basis and while travelling on the tractor, she fell down and died. It was held by this court that the Insurance Company would not be liable under the third party insurance policy the position of the victim akin to gratuitous passenger. The amount of award was held recoverable from the owner of the tractor only and appeal preferred by the Insurance Company was allowed. 13. Considering the facts of this case, the present appeal is hereby allowed. The award passed by the learned Motor Accident Claims Tribunal (Aux.), 2nd Fast Track Court, Dahod in M.A.C.P. No. 1523 of 2004 and 1524 of 2004 is hereby modified to the extent of exonerating the appellant-Insurance Company from the liability for paying compensation to the claimants. In this case, it was found by this Court that there was clear admission on the part of the claimants that they have taken the lift from the driver of the vehicle tractor. This Court has of course held that there was a definite violation of terms and conditions of the Insurance. So far the serious injuries caused to the passengers of the vehicles is concerned, out of all passengers only two victims were died. However, in the FIR and in the affidavit-in-chief, it was specifically stated that the victims were thrown out from the vehicle because the vehicle turned turtle and sustained fatal injuries. It was found by this Court that factually, it was well established, when the tractor was turned turtle, out of all passengers, the victims were thrown out of the tractor and had fallen down. Therefore, this Court is of the view that though the initial entry in the tractor as a passenger was in violation of the terms of agreement. It was found by this Court that factually, it was well established, when the tractor was turned turtle, out of all passengers, the victims were thrown out of the tractor and had fallen down. Therefore, this Court is of the view that though the initial entry in the tractor as a passenger was in violation of the terms of agreement. Here, in the present case, this is not the position as both the passengers were sitting on the tractor, and therefore, the liability of paying compensation by the appellant- Insurance Company does not arise. 14. The appellant-Insurance Company is exonerated from the liability of paying compensation to the claimants. As agreed by both the parties, the amount deposited by the appellant- Insurance Company either before this Court or before the Tribunal shall be refunded /recovered with proportionate cost and interest to the appellant-insurance company through RTGS and if the amount is already disbursed in favour of the original claimants, the same shall not be recovered from the them, but the same shall be recovered from the owner of the vehicle. The claimants are entitled to recovery the compensation amount from the owner of the vehicle. Appeals shall stand allowed to the aforesaid extent. Record and proceedings be transmitted back to the concerned Tribunal forthwith.