1.0 The above appeals are directed against the judgement and award dated 23.08.2004 passed by the Motor Accident Claims Tribunal (Main), Valsad in Motor Accident Claim Petition No. 709 of 2002 ( Old No. 19 of 1995), 654 of 2002 ( Old No. 440 of 1994)and 656 of 2002 ( Old No. 456 of 1994) whereby the claim petitions preferred by the claimants came to be partly allowed by awarding compensation in the sum of Rs. 20400/ together with interest at the rate of 9%.
2.0 On 23.05.1994 Amrutbhai Khushalbhai Patel, Gulabbhai Khushalbhai and Shantiben Karsanbhai Patel were travelling in Tempo bearing No. G.J. 15 T 1968. The Tempo was driven by the driver in an excessive speed and in rash and negligent manner. The Tempo dashed with the tree near Kumbhariya Board on ChivalPardi Road. As a result of this, they received serious injuries. In the said accident Amrutbhai Kushalbhai Patel and Gulabbhai Kushalbhai Patel succumbed to the injuries and Shantiben received serious injuries. The legal heirs of the deceased and claimant filed the aforesaid claim petitions before the Tribunal, wherein the aforesaid awards came to be passed which are challenged in the present appeals.
3.0 Learned advocate appearing for the appellantInsurance Company contended that the learned Tribunal erred in passing award against the Insurance Company though there has been breach of the policy condition as the deceased and claimant were travelling as unauthorized/fare paying or gratuitous passengers on the date of the accident. He further contended that the vehicle involved in the accident was goods vehicle and therefore the insurer would not be liable to pay compensation for the death of the deceased as well as claimants who were travelling in a goods vehicle and met with death or bodily injuries on account of an accident. He further submitted that the accident occurred prior to the amendment in 1994 in Motor Vehicles Act 1988. In support of his contention he placed reliance on the decision of the Hon’ble Apex Court in case of New India Assurance Co. Ltd versus Asha Rani and other reported in (2003) 2 Supreme Court Cases 223.
4.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
5.0 Heard learned advocate for the respective parties and perused the documents on record. It is an admitted position that the deceased as well as claimants were travelling in the goods vehicle on 23.05.1994 and met with the accident. Further, the vehicle involved in the accident was goods vehicle and therefore the insurer would not be liable to pay compensation for the death of the deceased as well as claimants who were travelling in a goods vehicle and met with death or bodily injuries on account of an accident. This view is supported by the decision of Hon’ble Apex Court in case of New India Assurance Co. Ltd versus Asha Rani and other reported in (2003) 2 Supreme Court Cases 223.
6.0 In view of the above the insurance company is not liable to pay the compensation to the claimants since the vehicle involved was goods vehicle and claimant was travelling in goods vehicle.
7.0 For the foregoing reasons, the appeals are allowed. The impugned judgment and award passed by the Tribunal is quashed qua the extent of imposition of liability on the appellantInsurance 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. If the amount is not withdrawn by the original claimants, it will be open to them to recover the same from the owner of the vehicle. No order as to costs.
(K.S.JHAVERI, J.) niru*