1. In respect of the vehicular accident that took place on 18.10.1985 at about 1430 hrs. in which Lakhman Kana expired, the legal heirs of deceased, preferred M.A.C.P. No.09/1999 before the Motor Accident Claims Tribunal (Aux.), Veraval. The said claim petition came to be allowed in part by judgment and award dated 20.02.2001 whereby, the claimants were awarded total compensation of Rs.33,328/- along with interest at the rate of 12% per annum from the date of application till its realization with proportionate costs.
2. The appellant-Insurance Company, original opponent no.3, has challenged the impugned award mainly on the ground that the Tribunal erred in fastening the liability of satisfying the claim on it though it was established on record that at the time of accident the deceased was travelling in a vehicle, which was classified as a 'goods vehicle' under the Motor Vehicles Act. He has relied upon Regulation 28 of the Rules of the Road Regulations, 1989, which reads as under;
“28. Driving of tractors and goods vehicles. - A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward.”
3. Though served, none appears on behalf of the respondent-original claimants.
4. Mr. R.C. Kakkad learned counsel for respondent no.3, owner of the vehicle, submitted that the deceased was not travelling in the Tractor in question at the relevant point of time. He submitted that the accident took place while the deceased was trying to board the vehicle and therefore, the liability of the owner will also not exist.
5. Before proceeding further, it would be relevant to note that no cross-objections have been filed on behalf of the respondent-owner. Therefore, in the present proceeding, the issue regarding liability of the owner of the vehicle cannot be decided.
6. From the evidence on record, it appears that when the accident took place, the deceased was found to be travelling in the Tractor, which is classified as a 'goods vehicle' under the M.V. Act. Under the provisions of the said Act. the Insurance Company of a 'goods vehicle' cannot be fastened with the liability of making payment of compensation, if any injury is caused or death takes place while travelling in such vehicle. Even otherwise, the provision of Rule 28 of the Rules expressly bars the travelling in a Tractor or 'goods vehicle' with any hire or reward. It is not even the case of the respondent owner that at the relevant point of time the respondentowner was carrying requisite number of persons, as mentioned in the registration certificate, in his cabin. Considering the facts of the case and the settled law on the subject, I am of the view that the Tribunal seriously erred in holding the appellant-Insurance Company liable to satisfy the award. Hence, the impugned award of the Tribunal only qua holding the appellant liable to satisfy the award deserves to be quashed and set aside.
7. For the foregoing reasons, the appeal is allowed. The impugned judgment and award passed by the Tribunal is quashed and set aside only qua the extent of imposition of liability upon the appellant-Insurance Company to satisfy the award. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants but, the appellant-Insurance Company shall be at liberty to recover the same from the owner of the offending vehicle. But, if the amount has not been withdrawn by the original claimants, the same shall be refunded to the Insurance Company and the claimants shall be at liberty to recover the balance amount from the owner of the offending vehicle. The appeal stands disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.] Pravin/*