JUDGMENT : 1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant – Insurance Company being aggrieved and dissatisfied with the judgment and award dated 05.05.2009 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.1130 of 2005. 2. Brief facts of the case are as under : 2.1 The brief fact of the present appeal is such that on 05.09.2005, the claimant was going to village Gadhda in Tempo No.GJ-4-V-3769 along with gunny begs, at that time opponent No.1 was driving the said Tempo in rash and negligent manner. When they reached within limits of Gadhda Police Station, the opponent No.1 swerved the tempo driven by him and collided with oncoming Tempo No.GI-1X-5765 of opponent No.3. As a result, the accident took place and claimant Bhotabhai Bharwad received severe injuries. In order to get compensation, the claimant has filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.15,00,000/- along with interest and cost. The learned Tribunal vide impugned judgment and award dated 05.05.2009 has granted compensation to the tune of Rs.7,37,800/- against driver, owner and insurer of Tempo No.GJ-4-V-3769 in which he was travelling. Hence, being aggrieved the present appeal. 3. Heard learned advocate Mr.Vibhuti Nanavati appearing for the appellant – Insurance Company and learned advocate Mr.Hiren Modi appearing for the claimant. 4. Learned advocate Mr.Vibhuti Nanavati submits that initially the appeal was filed on two grounds. Firstly that the driver of the offending vehicle was not holding appropriate licence to drive the offending vehicle as the endorsement to ride the transport vehicle was missing from the licence of the driver of the offending vehicle. However, in view of judgment of Mukund Dewangan vs. Oriental Insurance Company Limited - (2017) 14 SCC 663 , which was later on approved in case of Bajaj Alliance General Insurance Company Limited vs Rambha Devi and others – 2024 (0) INSC 840 , the Insurance Company is not pressing the said ground. 4.1 The second ground canvassed by learned advocate Mr.Nanavati is that at the time of road accident, the claimant was travelling in the goods carriage vehicle. This vehicle is not meant for carrying passenger. Hence, carrying claimant in goods carriage vehicle by its driver is breach of terms and conditions of the policy leading to exoneration of the Insurance Company. 4.1 The second ground canvassed by learned advocate Mr.Nanavati is that at the time of road accident, the claimant was travelling in the goods carriage vehicle. This vehicle is not meant for carrying passenger. Hence, carrying claimant in goods carriage vehicle by its driver is breach of terms and conditions of the policy leading to exoneration of the Insurance Company. This issue is specifically raised in the written statement but has not been properly examined by the learned Tribunal. He would further submit that sitting capacity of the errant vehicle was one. The owner himself was riding the errant vehicle and therefore he had knowledge that in the goods vehicle he cannot permit any person to sit yet the owner of the vehicle has permitted more than one person to sit in the errant vehicle. Therefore, the act of the owner cum driver of the errant vehicle is a breach of the terms and conditions of the policy. 4.2 Learned advocate Mr.Nanavati referred to the judgment of Hon’ble Apex Court in case of United India Insurance Company Limited vs. Suresh K.K. - 2008 (12) SCC 657 , to contend that the term “any person” under Section 147(1) of the Motor Vehicle Act, 1988 does not include any gratuitous passenger. He would further submit that in the present case the claimant seated in the vehicle as a gratuitous passenger as such has breached the terms and conditions of the policy and since the owner is guilty of breach of the terms and conditions of the policy, the Insurance Company cannot be held liable to pay the compensation for and on behalf of the owner. Learned advocate Mr.Nanavati while arguing this aspect, also taken this Court through the pleadings and the evidence on record and submitted that defense of the gratuitous passenger is established even from the pleading and evidence produced by the claimant. Therefore, he submits that learned Tribunal has committed error in fastening liability upon the Insurance Company to pay the compensation. 4.3 Mainly upon above arguments, Insurance Company has appealed to exonerate the Insurance Company from liability to pay the compensation. 5. On the other hand, learned advocate Mr.Hiren Modi appearing for the original claimant having referred Section 147(1)(b)(i) of the Motor Vehicle Act, 1988 submits that from inception it is the case of the claimant that he was travelling with his goods. 5. On the other hand, learned advocate Mr.Hiren Modi appearing for the original claimant having referred Section 147(1)(b)(i) of the Motor Vehicle Act, 1988 submits that from inception it is the case of the claimant that he was travelling with his goods. He was donating some grains to the Mandir and he intended to deliver these grains to the Mandir and for that purpose, he sat in the rickshaw along with goods and therefore there is no breach of the terms and conditions of the policy. Section 147(1)(b)(i) of the Act covers risk of the person travelling in the goods vehicle with the goods and therefore, he would further submit that though Insurance Company raised the defense in written statement that the claimant was not travelling along with his goods, yet none from the Insurance Company came into the witness box to lead evidence to substantiate the pleading and therefore in the circumstances, learned Tribunal has rightly passed the judgment and award in favour of the claimant fastening the liability of the Insurance Company. In line of this submission, learned advocate Mr.Modi lastly submitted that impugned judgment and award since has addressed this issue eloquently in accordance with provision of law; finding and reasons slated in the impugned judgment and award are not needed to be interfered in this appeal. Upon this submission, he submitted to dismiss the appeal. 6. I have heard learned advocate for both sides and I have also gone through the record and proceedings of the case and evidence led during the trial of the claim petition. 7. In para 2 of the written statement, it is pleaded by the Insurance Company as under : “2. The vehicle involved in the accident is Veh.No.GJ.4.U.3769. As per R.C. Book this vehicle is auto Rixa delivery van, and not tempo as alleged by applicant. Seating capacity (including driver) is one (1). It is commercial vehicle. The Insured has to use the vehicle to transport the goods. Hence it is called transport vehicle. The vehicle is insured with this opponent No.2. The policy is also issued as Transport Vehicle and the Risk of the only driver is covered. The opponent No.1 cannot allowed any person to sit in the vehicle for loading and unloading the goods. If any person are sitting in such capacity, the risk is not covered under the policy. The vehicle is insured with this opponent No.2. The policy is also issued as Transport Vehicle and the Risk of the only driver is covered. The opponent No.1 cannot allowed any person to sit in the vehicle for loading and unloading the goods. If any person are sitting in such capacity, the risk is not covered under the policy. Here 3 persons were sitting in the Auto Rixa delivery van with their goods, so the risk of these 3 persons are not covered under the policy. They are called to be unauthorized passengers travelling in the transport vehicle. After the amendment of M.V. Act, 1994 if additional premium is not paid for insured and his authorized persons, then the risk of such passengers are not covered. Here the applicant was not the owner – insured nor the insured’s authorized person. Hence the claim is required to be rejected. As per the policy condition, if a person is driving a transport vehicle then he must hold valid and effective driving licence to drive the transport vehicle. The opponent No.1 was holding a licence No.GJ.04/012297/06 issued on 30.03.2005, period from 30.03.2005 to 29.03.2025 that too valid for other than transport vehicle. Hence the claim is to be rejected against opponent No.2.” 8. Thus, what could be seen is that the Insurance Company has raised specific defense before the learned Tribunal that errant vehicle is a commercial vehicle and sitting capacity of which is one. This vehicle may be used only for the purpose of transporting the goods. The errant vehicle cannot be used for the travelling of the passenger and if any person is sitting in the errant vehicle, his risk is not covered, as any premium has not been charged. Therefore, he is unauthorized passenger and having been gratuitous passenger, he cannot claim compensation from the insurer of the owner of errant vehicle. In other words, it is contended that since the owner of the vehicle has permitted the claimant to travel in the commercial vehicle, the owner is guilty of the breach of terms and conditions of the policy and since there is no premium has been charged for the passenger travelling in the commercial vehicle, the Insurance Company cannot be held vicariously liable to pay the compensation. 9. 9. This Court in case of Oriental Insurance Company Limited vs. Shardaben Wd/o. Hasmukhbhai Vinubhai Parmar – 2024 XJ (GUJ) 1414, held that if the Insurance Company is claiming particular person as gratuitous passenger, it is duty of the Insurance Company to prove that deceased was travelling as gratuitous passenger in offending vehicle. The coordinate Bench of this Court in case of New India Assurance Company Limited vs. Jashodaben Vithalbhai Rohit – 2024 (0) GUJHC 35548, has identically held that if the Insurance Company is claiming that if any passenger is travelling in goods vehicle as gratuitous passenger, it is for the Insurance Company to prove that he was not travelling as owner of the goods but he was travelling as gratuitous passenger without paying fare. 10. In background of the above legal position of law, let examine that whether Insurance Company has led evidence to discharge burden upon it. In the present case, the Insurance Company except making the pleading of gratuitous passenger, has not done anything including leading evidence to prove such defense that the claimant was travelling as a gratuitous passenger in the errant vehicle without his goods. The Insurance Company could have obtained the evidence of driver or owner of the vehicle to prove that the person travelling in the commercial vehicle was gratuitous passenger and he has not paid any fare nor he was travelling with his own goods. In contrast, the claimant pleaded that on 05.09.2005 he was travelling from his village by placing grain bags in the errant vehicle to donate and deliver it at the village Gadhda in temple. He has reiterated said facts on oath by filing the affidavit in chief at Exhibit-23. Learned advocate appearing for opponent No.2 cross-examined the claimant. In his cross-examination suggestion was put to the extent that on the day of accident they were travelling with their grain bags to donate the same in the Mandir at Gadhda. The suggestion was accepted by the witness. Apart from that no other questions are asked in the cross-examination to the claimant. In his cross-examination suggestion was put to the extent that on the day of accident they were travelling with their grain bags to donate the same in the Mandir at Gadhda. The suggestion was accepted by the witness. Apart from that no other questions are asked in the cross-examination to the claimant. The Insurance Company who has made hue and cry that the claimant was travelling as gratuitous passenger in the goods vehicle without his goods, has cross-examined the claimant through his learned advocate Mr.Ashwin Bhatt before learned Tribunal, but to the utter surprise of this Court, no question has been asked to the claimant that he was travelling as gratuitous passenger without goods in the errant vehicle on that day. Since the issue of gratuitous passenger has not been raised in the evidence before the learned Tribunal by the Insurance Company, it cannot be permitted to be raised for the first time in this appeal. It was argued that FIR does not spell that claimant was travelling as passenger with his goods. This is suffice to establish him as gratuitous passenger. Apt to note that the FIR of the accident has been given by some third party who was not eye-witness to the road accident and therefore, it is obvious that he has not stated any facts that in which capacity claimant was sitting in the errant vehicle. Secondly, claimant entered into witness-box and depose in regard to fact of accident on oath. claimant’s statement on oath before learned Tribunal out-weight evidentiary value of FIR. 11. At this juncture, let me refer Section 147(1)(b)(i) of the Motor Vehicle Act, 1988 as under : “147. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which – (a) *** *** *** (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) – (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place;” 12. The purpose of Section 147(1)(b)(i) for which it has been amended by Act No.54 of 1994 was to widen the scope of the liability of the Insurance Company and to cover the risk of the person travelling in the goods vehicle along with the goods. If the claimant is travelling in the vehicle as owner of the goods, he will be covered by the policy of the insurance. In the present case, the claimant not only pleaded but also proved that he was travelling in the commercial vehicle along with his goods to deliver and donate the same at Mandir in village Gadhda. 13. As observed hereinabove, learned advocate appearing for the Insurance Company did not dispute the statement made by the claimant on oath during the cross-examination. In that view of the matter, it appears that the Insurance Company has desolately failed to prove that the claimant was travelling as gratuitous passenger without goods. The evidence speaks itself that the claimant was travelling as owner of the goods in the commercial vehicle and his risk is covered under Section 147(1) (b)(i) of the Motor Vehicle Act, 1988. In view of the above, it appears that the learned Tribunal has committed no error in fastening liability upon the Insurance Company to pay the compensation. 14. Learned advocate Mr.Vibhuti Nanavati has failed to point out any other point which may permit the Court to take a different view. As far as judgment in case of Suresh K. K. (supra) is concerned, it was a case where driver of the commercial vehicle has shared his seat and permitted the person to travel along with him in the commercial vehicle. The Hon’ble Supreme Court in fact of this case held that it is a breach of terms and conditions of the policy. It was held by Hon’ble Supreme Court that since the claimant was not travelling in the vehicle as owner of the goods, his risk shall not be covered by the policy of the Insurance Company. The finding of this judgment would not avail any assistance to the present appellant. 15. In view of the above, this appeal fails and is, accordingly, dismissed. The impugned judgment and award is upheld. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith. The finding of this judgment would not avail any assistance to the present appellant. 15. In view of the above, this appeal fails and is, accordingly, dismissed. The impugned judgment and award is upheld. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith. Learned Tribunal is directed to disburse the entire amount of compensation laying with it to the claimant, if not already disbursed.