1. The appellant-Insurance Company has preferred this appeal against the judgment and award dated 15th October, 1999, passed by the Motor Accident Claims Tribunal, Rajkot,(for short, “the Tribunal”) in M.A.C.P. No. 1333 of 1995, whereby the tribunal has awarded compensation in the sum of Rs.44,640/- to the claimant with interest at the rate of 12% per annum from the date of filing of the petition till realization.
2. The facts in brief are that on 18.11.1995 one Fuliben Vallabhbhai was travelling in a Rickshaw bearing registration No.GJ-3-T-712 as an owner of the goods. The driver of the said Rickshaw was driving his vehicle rashly and negligently, therefore, he lost control over his vehicle and the said vehicle turned turtle. As a result of the said accident Fuliben Vallabhbhai sustained grievous injuries. Therefore, she filed claim petition being M.A.C.P. No. 1333 of 1995 before the Tribunal for compensation. The Tribunal after hearing learned advocates for both the parties and after perusing the record decided the claim petition and passed the award as stated hereinabove, against which the present appeal is filed by the appellant- Insurance Company.
3. Learned advocate for the appellant inter alia contended that the vehicle in question was a goods vehicle and use of the goods vehicle for carrying passengers is prohibited and therefore the insurance company was not liable to pay the compensation. In support of her contention, he relied upon the decision of the Apex Court in the case of National Insurance Company Ltd. Vs. Savitri Devi and Ors. Reported in 2012(4) SCALE, 111 and in the case of New India Assurance Company Vs. Asha Rani and Ors, reported in (2003) 2 SCC 223.
4. Learned counsel for the respondents has contended that the judgement and award passed by the Tribunal is just and proper. In support of her contention, he relied upon the decision of of larger bench of this Court, in the case of New India Assurance Co. Ltd. Vs. Kamlaben and Others, reported in 1993 ACJ 673. Head-note of the said decisions reproduced as under:-
“20. Motor Vehicles Act, 1939, section 95(1) and 96(2) reads with section 2(8) [sections 147(1) and 149(2) read with section 2(14) of 1988 Act]- Motor insurance-goods vehicle-passenger carried in a goods vehicle- Liability of insurance company-passenger was travelling in a truck by paying far and the truck met with an accident resulting in death of the passenger - Whether insurance Company liable- Held: Yes; goods vehicle can also be used for carrying passengers for hire or reward on some occasions; in order to disclaim its liability on the grounds mentioned in section 96(2)m the insurance company has to establish:
(i) that on the date of the contract of insurance, the insured vehicle was expressly or implicitly, not covered by a permit to carry any passenger for hire or reward;
(ii) that there was a specified condition in the policy , which excluded the use of the insured vehhicle for the carriage of any passenger for hire or reward;
(iii) that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward; and
(iv) that the vehicle was used by the insured or at his instance in breach of specific conditions including a condition that in the goods vehicle passengers for hire or reward were not to be carried. If it is done without knowledge of the insured by the driver's acts or 0mission, the insurer would be liable to indemnify the insured. [ 1979 ACJ 292] (Gujarat) and 1982 ACJ 153 (Gujarat) confirmed]”
5. I have heard learned counsel appearing for both the parties and perused the material on record. It is not in dispute that the vehicle in question was a goods vehicle. In view of the evidence of one Fuliben and Mansukhbhai at Exh. 27 and 40, wherein they stated that they were traveling in the goods vehicle with their personal goods. Therefore, in view of the provisions of sub section 1(13) of section 2 of the M.V. Act, personal goods are exempted from the definition of 'good' and hence, it was breach of conditions. Under this circumstances, the present appeal deserves to be allowed.
6. In that view of the matter, 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 claimants, the same shall not be recovered from the original claimants 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 claimants, the same shall be refunded to the Insurance Company and it will be open to the claimants to recover the said amount from the owner of the vehicle. The amount, if any, lying with the Registry be transmitted to the Tribunal forthwith. The appeal stands disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.]
pawan