This First Appeal is preferred by the insurer of Tempo No.MH-15-G-3499 which met with an Ramjibhai suffered fatal injuries and succumbed thereto. Therefore, his legal heirs preferred Motor Vehicle Accident Claim Application No.377 of 1996, before the Motor Accident Claims Tribunal, Valsad at Navsari. The said petition was made claiming an amount of Rs.2,00,000/- as compensation. The Tribunal by its judgment and award dated 11/08/2003 awarded a compensation of Rs.1,02,000/- with interest @ 9% from the date of claim petition till its realization with proportionate costs, and holding the driver, the owner and insurer of the said vehicle liable to pay the compensation. 2. The insurer – appellant has preferred this appeal mainly on the ground that the deceased was travelling in the vehicle which was a goods vehicle insured by the appellant. He was, therefore, an unauthorized occupant and the Insurance Company cannot be saddled with any liability to pay compensation.
3. Mr.Thakker, learned Advocate for the appellant has taken this Court through the judgment of the Tribunal as well as the evidence on record. Learned Advocate submitted that the deceased alongwith several others had occupied the tempo while returning home after attending Anna Ceremony and it is nobody's case that the deceased was travelling with goods or he had paid any freight for the goods that he was carrying and, therefore, the Insurance Company could not have been saddled with any liability.
4. Having gone through the judgment as well as evidence on record, what emerges is that it is not the case of the claimant anywhere, either in the petition or in the affidavit, that the deceased was occupant of the tempo and he died in the accident as such. It is also required to be noted that the FIR and / or Panchnama does not make any reference to the deceased as one of the passengers. The evidence would only reveal that the tempo met with an accident and in that accident, deceased - Kasturbhai Ramjibhai was injured. The Tribunal has also proceeded on the premises that the accident occurred on 14/05/1996 i.e. after the amendment in the Act in the year 1994 and held that the insurer is liable to pay compensation to the claimant.
5. The evidence of the claimant – respondent No.1 herein (widow of the deceased) at Exh.20 only says that the deceased was aged 55 years and was earning Rs.1,500/- per month which he used to spent on family. During her cross-examination she states that she had not seen the accident herself. Problem arises when a question is put to her in cross-
examination and she replies that the deceased was travelling in tempo. If the claimant had not seen the occurrence of accident, she would not have known, whether the deceased was travelling or not, particularly when in her averments made in the petition as well as examination in chief she does not say that the deceased was travelling in the tempo. The objection raised by the Insurance Company about having saddled with the liability, therefore, cannot be accepted in this evidential background. The Insurance Company has not led any oral evidence; no witness is examined to show that the deceased was not travelling in the tempo.
5.1 It may also be noted that the age and income of the deceased and dependency are not disputed. As per the Tribunal, the accident occurred after a new Act came into force, which the learned Advocate for the appellant is unable to controvert.
6. In the opinion of this Court, therefore, there is no substance in the appeal. Appeal stands dismissed. No order as to costs. Rs.25,000/- deposited with the Registry of this Court shall be transmitted to the Tribunal for its disbursement, in accordance with law.
(A L DAVE, J.) sompura