This First Appeal is at the instance of the Insurance company and is directed against an award dated October 23, 2003 passed by the Motor Accident Claims Tribunal (Aux.) at Dhrangadhra in MACP Case No.703 of 1998 thereby awarding a sum of Rs.2,34,000/- in favour of the claimants from the owner of the tractor as well as the Insurance Company who were held to be jointly and severally liable to pay the amount. 2. According to the claimants, the deceased was travelling on a tractor and due to rash and negligent driving on the part of the driver of the tractor, he had fallen down, resulting in death.
3. The Tribunal below came to the conclusion that due to rash and negligent driving on the part of the driver of the said tractor, the accident occurred and the victim having fallen down from the said tractor had died. After taking into consideration the income of the victim as appearing from the evidence given by his father, the Tribunal arrived at the figure of compensation, as indicated earlier.
4. Being dissatisfied, the Insurance company has come up with the present appeal.
5. The learned advocate appearing on behalf of the Insurance company has taken a pure question of law in support of this appeal. According to him, in the claim application, the claimants having specifically pleaded that the victim was going with the tractor after taking the tractor on rental basis, his client is not liable to pay any amount of compensation inasmuch as in view of the provisions of Section 147 of the Motor Vehicles Act the liability of his client is limited to third party. According to him, the victim being a passenger of the vehicle and in the accident no other vehicle being involved, the victim cannot be said to be a third party with reference to the tractor in question. In support of his contention, he has relied upon the decision of the Supreme Court in the case of New India Assurance Co. Ltd. vs. Darshana Devi and others reported in 2008 ACJ 1388.
6. Mr Karia, the learned advocate appearing on behalf of the claimants, however, tried to convince me that the owner of the vehicle being the uncle of the victim and the victim was carrying fertiliser at the instruction of his client for the purpose of agriculture and as such the victim should be treated to be agent of the owner.
7. However, having regard to the averments made in paragraph 12 of the claim-application, in my opinion, the aforesaid claim of Mr Karia is not tenable. In the claim-application, it is specifically stated that the deceased took the tractor on rental basis and thus, by the policy of the third-party-insurance, the insurance company cannot be made liable to make payment of compensation for the death of such a passenger of the vehicle. His position, in my opinion, is akin to that of a gratuitous passenger and thus, the decision of the Supreme Court referred to above is clearly applicable.
8. In view of what has been stated above, I modify the award impugned to this extent that the Insurance company, the appellant, will not be liable to pay the amount and the amount may be recoverable from the owner of the tractor.
9. The appeal is thus allowed to the extent indicated above. The amount deposited by the Insurance company in the Tribunal which was kept in fixed deposit by the Tribunal pursuant to the order passed by this Court be refunded to the Insurance company. The Insurance company will also be entitled to recover the amount of interest received by the claimants from the fixed deposit from the owner of the vehicle and the claimants.
(BHASKAR BHATTACHARYA, CJ.) zgs