[1] This appeal is directed against the judgment and award dated 28.06.2004, passed by the Motor Accident Claims Tribunal (Aux.), Jamnagar, in M.A.C.P. No.47 of 1999, whereby the tribunal has awarded compensation in the sum of Rs.1,08,330/- to the claimant with interest at the rate of 9% per annum from the date of filing of the petition till realization.
[2] The facts of the present case are that on 05.12.1998, the claimant was travelling as a owner of goods in the Truck bearing Registration No.GJ-10-T-9796 to go from Dwarka to Labha for the purpose of doing mason work with goods of mason work.The truck was being driven rashly and negligently and, therefore, the truck – original opponent No.1 lost the control of the steering and suddenly he applied brake as a result of which the truck turned turtled and the applicant sustained grievous injury and permanent partial disablement and, therefore, he filed the claim petition before the Tribunal.
[3] Learned advocate for the appellant – Insurance Company submitted that the tribunal has failed to appreciate that the appellant cannot be held liable to satisfy the award in view of the judgment of the Hon'ble Supreme Court in the case of New India Assurance Company Limited Vs. Asha Rani and others, reported in 2003 (1) ACJ 1. He submitted that the Hon'ble Supreme Court has held that the difference in definitions of 'goods vehicle' in 1939 Act and 'goods carriage' in 1988 Act is significant. He submitted that the impugned award passed by the tribunal is contrary to the evidence on record.
[4] The learned advocate for the appellant submitted that the claimant has not stated anywhere in FIR that the claimant was travelling as owner along with his goods. The panchnama also does not disclose that any material was found from the place of accident. It is submitted that, the panchnama categorically states that nothing was found by the police at the place of occurrence of the accident. He submitted that the tribunal has not considered that the claimant was travelling as gratuitous passenger in truck No.GJ-10-T-9796 contrary to the conditions of policy. He therefore submitted that the Insurance Company cannot be held liable to satisfy the award.
[5] Learned advocate submitted that the tribunal has failed to appreciate that the Motor Vehicles Act, 1988, Section 2(14) omits the word 'in addition to passenger' and states that the goods carriage means any motor vehicle contracted or adopted for use solely for the carriage of goods and hence the appellant is not liable on the ground of fault liability or on the ground of no fault liability. He submitted that the tribunal has not appreciated the fact that the vehicle insured by the appellant does not come under the definition of Public Service Vehicle as defined under Section 2(35) of the Motor Vehicle Act.
[6] Learned advocate submitted that the claimant has not produced any proof in respect of the income and in respect of age. It is submitted that the learned tribunal ought not to have considered monthly income at Rs.2250/- in absence of any proof of income. It is submitted that the tribunal ought not to have considered the age as 21 years in absence of any proof of age of the claimant. He submitted that the Tribunal has not appreciated the fact that Truck No.GJ-10-T- 9796 being goods carriage vehicle was expressly and impliedly not covered by a permit to carry any passenger. He submitted that the claimant in his examination in chief, he stated that he was travelling as an owner of the goods in the said truck for the purpose of mason work from Dwarka to Labha with goods He, therefore, urged that the appeal is required to be allowed and impugned judgment and award is required to be quashed and set aside.
[7] I have heard learned advocates for the respondents. They have opposed the present appeal and urged that the appeal is required to be dismissed.
[8] I have heard learned advocate appearing for the parties and perused the materials on record. It is not in dispute that the vehicle in question in which the claimant was travelling was a 'goods vehicle'. Once it is concluded that the claimant was travelling in a truck, then the Insurance Company could not be made liable to satisfy the claim in view of Regulation 28 since the vehicle in question was a 'goods vehicle'. Hence, the Tribunal ought to have exonerated the Insurance Company from the liability of satisfying the claim. Under the circumstances, the appellant-Insurance Company could not be held liable in view of the principle laid down in National Insurance Company Limited (Supra). Hence, the appeal of the Insurance Company deserves to be allowed.
[9] For the foregoing reasons, the appeal is allowed. The impugned judgment and award passed by the Tribunal is quashed only qua the extent of imposition of liability on 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 Insurance Company shall be at liberty to recover the same from the owner of the vehicle. But, if the amount has not been withdrawn by the original claimant, the same shall be refunded to the Insurance Company along with interest. The appeal stands disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.]
vijay