1. These appeals have been preferred against the common judgment and award dated 26.09.1996 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar in M.A.C.P. No.183/1993 to 185/1993 whereby, the claim petitions were allowed in part and the original claimants were awarded compensation of Rs.2.60 Lacs, Rs.37,500/- and Rs.2.60 Lacs respectively along with interest at the rate of 15% per annum from the date of application till its realization with proportionate costs.
2. The above claim petition came to be filed in respect of the vehicular accident that took place on 18.01.1993 at around 1000 hrs. in which two persons, viz. Dhanjibhai Babubhai and Javerbhai Jadavbhai, lost their lives and one person, named, Vallabhbhai Bhagwanbhai sustained severe bodily injuries.
3. The main contention raised on behalf of the appellant-Insurance Company is that the deceased and injured were travelling as gratuitous passengers in a 'goods vehicle' and therefore, the liability of satisfying the award cannot be saddled upon the Insurance Company. In support of the above submission, reliance has been placed on 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. Per contra, it has been submitted by learned counsel Mr. Kinariwala on behalf of the original claimants that the Tribunal has rightly held the appellant-Insurance Company jointly and severally liable to satisfy the award. It is submitted that the Motor Vehicles Act is a welfare legislation and therefore, the Insurance Company is liable to satisfy the award and if the Insurance Company believes its liability does not exist, then it could satisfy the award at the first place and thereafter, recover the amount from the owner of the vehicle.
4.1 In support of the submission, reliance has been placed by Mr. Shah on a decision of the Apex Court in the case of United India Insurance Co. Ltd. v. KM Poonam and others, 2011 (2) SCALE 568 wherein, it has been held that though the liability of the insurer is confined to the number of persons covered by the insurance policy and not beyond it but, the liability continues under the provisions of sub-section (1) of Section 149 of the Act as it would be entitled to recover the same from the insured-owner if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle.
5. Heard learned counsel for the parties. It is not in dispute that the vehicle in which the deceased and injured were travelling at the time of accident was a vehicle classified as 'goods vehicle' under the provisions of the Motors Vehicles Act. Under 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. Hence, considering the facts of the case and the principle rendered in Asha Rani's case (supra), the Insurance Company cannot be held liable to make payment of compensation.
6. So far as the decision rendered in KM Poonam's case (supra) is concerned, undoubtedly, the principle laid down therein is a good law. The principle rendered in the said decision would apply, if, in a given case, the Insurance Company is, ultimately, found to be liable. But, when the Insurance Company is not found to be liable under the Act, just like the case on hand, then the directions similar to that in KM Poonam's case (supra) cannot be issued against the Insurance Company concerned. Hence, the present appeals deserve to be allowed.
7. For the foregoing reasons, the appeal is 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 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. 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 appeals stand disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.] Pravin/*