1.0 This appeal is directed against the judgement and award dated 16.08.2002 passed by the Motor Accident Claims Tribunal(Auxi.) Surendranagar,(for short, “the Tribunal”) in M.A.C.P. 336 of 1991 whereby, the learned Tribunal has awarded compensation in the sum of Rs.165000/ to the claimant with interest at the rate of 9% per annum from the date of filing of the petition till realization.
2.0 The facts in brief are that on 28.01.1991, Puriben Kalubhai along with other persons was travelling in a Truck bearing registration No. GJ 1T6915. When they reached near village Jhakhad, the driver of the said truck was driving his vehicle rashly and negligently. Therefore, he lost control over his vehicle and the said Truck turned turtle. As a result of the said accident Puriben sustained grievous injuries and succumbed to the injuries. Therefore, the legal heirs of the deceased, filed the aforesaid claim petition. The Tribunal after hearing both the parties and after perusing the record passed the aforesaid award which is challenged in the present appeal.
3.0 It is pointed out that the present appeal arose out of one common accident and raise identical questions and another appeals have been disposed of by common judgement and order dated 30.03.2012 in First Appeal No. 2451 and 2003 and other cognate matters wherein the following order was passed which is reproduced as under:
“1.The appellantInsurance Company has preferred these appeals against the common judgment and award dated 16.08.2002 passed by the Motor Accident Claims Tribunal(Auxi.) Surendranagar,(for short, “the Tribunal”) in M.A.C.P. Nos. 762 of 1991, 427 of 1991, 428 of 1991, 912 of 1991, 335 of 1991, 470 of 1991, 472 of 1991, 763 of 1991, 494 of 1991, 61 of 1994, 337 of 1991, 469 of 1991, 471 of 1991, 473 of 1991, whereby, the tribunal has awarded compensation in the sum of Rs.20,000/ to the claimant of M.A.C.P. No.762 of 1991, Rs.1,70,000/ to the claimants of M.A.C.P. No.427 of 1991, Rs.10,000/ to the claimant of M.A.C.P. No.428 of 1991, Rs.2,90,000/ to the claimants of M.A.C.P. No.912 of 1991, Rs.95,000/ to the claimants of M.A.C.P. No.335 of 1991, Rs.25,000/ to the claimant of M.A.C.P. No.470 of 1991, Rs.25000/ to the claimant of M.A.C.P. No.472 of 1991, Rs.20,000/ to the claimant of M.A.C.P. No.763 of 1991, Rs.32,000/to the claimant of M.A.C.P. No.492 of 1991, Rs.55,000/ to the claimants of M.A.C.P. No.61 of 1994, Rs.80,000/ to the claimants of M.A.C.P. No.337 of 1991, Rs.1,08,000/ to the claimants of M.A.C.P. No.469 of 1991, Rs.37,000/ to the claimant of M.A.C.P. No.471 of 1991 and Rs.70,000/ respectively, with interest at the rate of 09% per annum from the date of filing of the petition till realization.
2. The facts in brief are that on 28.01.1991, some persons were travelling in a Truck bearing registration No. GJ1T6915. When they reached near board of village Jhakhad, the driver of the said truck was driving his vehicle rashly and negligently, therefore, he lost control over his vehicle and the said Truck turned turtle. As a result of the said accident they sustained grievous injuries and due to which some of them are expired. Therefore, they several claim petitions filed by the injured persons and the legal heirs of the deceased. The Tribunal after hearing learned advocates for both the parties and after perusing the record decided the claim petitions and passed the award as stated hereinabove, against which the present appeals are filed by the appellant Insurance Company.
3. On behalf of the appellant, learned Advocate 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. He relied upon the decision of the Apex Court in the case of Pramod Kumar Agrawal and Another Vs. Mushtari Begum (Smt) and Others, reported in (2004) 8 SCC 667 and Kusum Lata and Others Vs. Satbir and Others, reported in 2011, ACJ 926, and submitted that the Insurance Company has to pay compensation and may recover from the owner of the vehicle. However, I am of the view that such a direction cannot be given at this stage, as the Insurance Company has already been exonerated.
4. Learned counsel for the respondents contended that the Tribunal ought to have granted compensation to the driver and cleaner of the offending vehicle. The contention of learned counsel for the respondent cannot be accepted as no cross objection is filed by the owner of the vehicle.
5. I have heard learned counsel appearing for both the parties and perused the material on record. The Hon'ble Apex Court in the case of New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223], has held that no person in any capacity was permitted to travel in a goods vehicle, The relevant portion of the said decision are reproduced as under: “20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.”
6. In view of the aforesaid discussion, the insurance company is not liable to pay the compensation to the claimant. Therefore, the present appeals are allowed. The amount deposited by the appellant – insurance company, if lying in the FDRs, shall be refunded to the insurance company. However, if the amount is already withdrawn by the claimants, the insurance company is at liberty to recover the same from the owner of the vehicle and not from the claimants.”
4.0 In view of the aforesaid decision, since it is amply clear that the deceased was travelling in the goods vehicle the appellant Insurance Company cannot be made liable to pay the compensation in question. Hence, it has to be concluded that the Tribunal has committed an error in holding the Insurance Company liable to pay compensation since the vehicle involved in the accident is a “goods vehicle”. Hence, the impugned award of the Tribunal deserves to be quashed and set aside.
5.0 In the result, Appeal is allowed. The impugned judgement and award qua the Insurance Company is quashed and set aside. If the amount is lying in F.D.R, it will be returned to the appellantInsurance Company and if it is withdrawn by the claimants, it will not be recovered from the claimants but it will be recovered from the owner of the vehicle by the Insurance Company. If it is not withdrawn by the claimants, the claimants can recover the amount from the owner of the vehicle. If any amount is lying with this Court, the same shall be transmitted to the concerned Tribunal. No order as to costs.
(K.S.JHAVERI, J.) niru*