This appeal was kept along with First Appeal No.3062/2001. However,the said appeal came to be dismissed for default. Therefore the present appeal is taken up for hearing. 1.0 This appeal is directed against the judgement and award dated 17.04.2001 passed by the Motor Accident Claims Tribunal (Auxi.), Surendranagar in Motor Accident Claims Petition No. 116 of 1990 wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 719000/ along with interest at the rate of 12% per annum from the date of claim petition till realization.
2.0 On 09.09.1989, Ashokbhai Mehta by paying fare was travelling in Metador No. GRP 5879 along with the goods. The said matador was driven by the driver in an excessive speed and in rash and negligent manner. When the matador was proceeding from Rajkot to Valod, it dashed with the truck No. GTY 3302 which was stationary vehicle. Ashokbhai Mehta sustained serious injuries and he succumbed to the same. The legal heirs of the deceased therefore, filed the aforesaid claim petition before the Tribunal wherein the aforesaid award came to be passed which is challenged in the present appeal.
3.0 Learned advocate appearing for the appellantInsurance Company mainly 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 who was travelling in a goods vehicle and met with death of bodily injuries on account of an accident. 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.
5.0 Heard learned advocate for the respective parties and perused the documents on record. The question arising in the present appeal is whether the insurer is liable to pay compensation to the heirs of the deceased who was travelling as passenger in goods vehicle and thereby there is breach of policy. 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 who was travelling in a goods vehicle and met with death of bodily injuries on account of an accident. Therefore there was breach of terms of the policy by the owner of the vehicle. This view is supported by the decision in the case of New India Assurance Co. Ltd versus Asha Rani and other (supra).
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 deceased was travelling as passenger in a goods vehicle.
7.0 For the foregoing reasons, the appeal is 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. If any amount lying with this Court shall be transmitted to the concerned Tribunal. No order as to costs.
(K.S.JHAVERI, J.) niru*