It is stated by learned counsel Mr. M.J. Shelat appearing on behalf of the appellant that all the claimants have been served by registered post AD. However, neither they have appeared nor they have been represented. 1. Both these appeals arise out of the common award dated 31.07.2008 passed by the Motor Accident Claims Tribunal (Aux.), Mahesana in M.A.C.P. No.1368/1992 and 301/1993 whereby, both the claim petitions were allowed in part.
2. The aforesaid claim petitions were filed in connection with the vehicular accident that took place on 08.05.1992 involving a Truck bearing registration No. GJ-9-T-5084 belonging to the appellant-Corporation.
3. The main contention raised on behalf of the appellant-Insurance Company is that the vehicle in which the deceased / claimants were travelling at the relevant point of time, was a vehicle classified as 'goods vehicle' under the Motor Vehicles Act and therefore, the appellant- Insurance Company could not have been held liable to satisfy the claim 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).
4. Heard learned counsel for the parties. None appears on behalf of the claimants.
5. It appears from the record that the vehicle in which the deceased / claimants were travelling at the time of accident was a 'goods vehicle'. Under the provisions of the M.V. 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 when the person concerned is not the 'employee' of the owner of such vehicle. In the present case, the deceased / claimants were travelling as gratuitous passengers. Considering the facts of the case and in view of the principle rendered in Asha Rani's case (supra), the appellant-Insurance Company cannot be saddled with the liability of making payment of compensation and hence, it is required to be exonerated from such liability.
6. For the foregoing reasons, both the appeals are allowed. The impugned common 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 make payment of compensation. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimant, then the same shall not be recovered from the original claimants but, shall be recovered from the owner of the offending vehicle and if the amount has not been withdrawn by the original claimant, then the same shall be refunded to the Insurance Company and the claimant shall be at liberty to recover the balance amount from the owner of the offending vehicle. Registry is directed to transmit the amount lying with this Court to the Tribunal concerned forthwith. The impugned award stands modified to the above extent. The appeals stand disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.]
Pravin/*