1. By way of these appeals under Section 173 of the Motor Vehicles Act, 1939, the appellant – insurance company has challenged the judgement and award dated 26.04.1996 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar in M.A.C.P Nos. 242 & 243 of 1991 whereby the Tribunal directed the original opponents to jointly pay compensation of Rs. 3,08,000/- & Rs. 1,00,000/- respectively with interest and proportionate costs.
2. The aforesaid claim petitions arose out of an accident which occurred on 30.05.1991 between villages Pasdavi amd Padargadh. The claimants were travelling in a truck bearing registration no. GJ-3T-2310 being driven by the original opponent no. 1 in a rash and negligent manner as a result of which the truck driver lost control of the truck and the truck turned turtle. The original applicants filed claim petition seeking compensation. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Sunil Parikh, learned advocate appearing for the appellant has contended that the present appellant ought to have been held not liable to pay the compensation amount as there is a specific condition in the policy not to use the vehicle for hire or reward. He has further contended that the Tribunal failed to appreciate that the passengers carried in a goods vehicle can by no stretch of imagination be construed as third party.
3.1 Mr Parikh has placed reliance on the decision of the Apex Court in order to substantiate his contentions. He has relied upon the decision in the case of New India Assurance Co. Ltd v Asharani reported in 2003(2) SCC 223.
4. Heard learned counsel for the parties. I have gone through the averments made in the appeals and documents placed on record including the award of the Tribunal. From the perusal of the award, it is clear that the present appellant had strongly contended before the Tribunal that it is absolved from the liability of paying compensation in view of the fact that the insured had committed breach of the terms of the policy as also the provisions of the M.V. Act by carrying passengers on payment of hire or reward in the goods vehicle.
4.1 A perusal of the decision relied on by the learned counsel for the appellant is relevant at this stage. In the case of New India Assurance Co. Ltd (supra), keeping in view the provisions of the 1988 Act, the Apex Court has taken the view that as the provisions do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefore.
5. As a result of hearing and perusal of records and in view of the decision of the Apex Court, I am of the opinion that the contentions raised by the appellant is required to be accepted. The fact that the vehicle in question was a goods vehicle cannot be disputed and therefore the appellant cannot be held liable to undertake third party risk in a case where the vehicle is used for a purpose other than the one for which the policy is covered. In that view of the matter, the award of the Tribunal is required to be modified by not holding the present appellant liable for the compensation payable to the original claimants.
6. In the premises aforesaid, the appeals are allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance company-present appellant. The amount deposited by the insurance company shall be refunded. However, if the amount is withdrawn by the original claimants, the same shall not be recovered. It will be open for the insurance company to recover the same from the owner and if the amount is not paid to the claimant it will be open for the claimants to recover the same from the owner. The award of the Tribunal impugned in these appeals is modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//