1. Though served, none appears on behalf of respondent-original claimant.
2. This appeal has been preferred against the judgment and award dated 17.06.1995 passed by the Motor Accident Claims Tribunal, Bhavnagar in M.A.C.P. No.339/1989 whereby, the claim petition was partly allowed and respondent no.1, original claimant, was awarded total compensation of Rs.32,000/- along with interest at the rate of 15% per annum from the date of application till its realization with proportionate costs.
3. The facts in brief are that on 08.07.1989 respondent no.1 herein was travelling in the Matador Tempo bearing registration No. GTS 8931 with certain goods. The said vehicle was driven by original opponent no.1, owned by original opponent no.2 and insured with the appellant-Insurance Company. On account of the rash and negligent driving, the said Tempo turned turtle near Pathikashram in Botad City. In the said accident, respondent no.1 sustained severe bodily injuries. She, therefore, filed claim petition before the Tribunal, which came to be partly allowed by way of the impugned award.
4. Being aggrieved by the award, the appellant-
Insurance has preferred the present appeal mainly on the ground that the vehicle in which respondent no.1 was travelling, was a 'goods vehicle' and hence, the Insurance Company is not liable to make payment of compensation in view of the decision of the Apex Court in the case of New India Assurance Co. Ltd. v. Asha Rani and others, AIR 2003 S.C. 607 (1).
5. Heard learned counsel for the appellant. It is a matter of record that the vehicle in which respondent no.1 herein was travelling was a 'goods vehicle'. Thus, the appellant-Insurance Company cannot be held liable in view of the principle rendered in Asha Rani's case (supra). Hence, the appellant is required to be exonerated from the liability of making payment of compensation.
6. In the result, the impugned common judgment and award passed in M.A.C.P. No.339/1989 is quashed and set aside only qua the extent of imposition of liability upon the appellant-Insurance Company to make payment of compensation. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimant, the same shall not be recovered from the original claimant and the appellant-Insurance Company shall be at liberty to recover the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 But, if the amount has not been withdrawn by the original claimant, the same shall be refunded to the Insurance Company. The appeal stands disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.] Pravin/*