1.0 The above appeals are directed against the common judgement and award dated 23.06.2000 passed by the Motor Accident Claims Tribunal, Valsad at Navsari in Motor Accident Claim Petitions No. 315 of 1987, 316 of 1987, 520 of 1987, 521 of 1987 and 527 of 1987.
2.0 On 24.05.1987 at about 5.30 a.m., the claimants and the deceased were going from Tadpada to Bilimora in tempo No. G.T.O. 1008. When the said truck was passing on the bridge of river Ambika at Unava village, it dashed with tempo No. G.T.O. 62 because of its excessive speed and by rash and negligent driving by the driver. As a result of this, some of the persons travelling in the Tempo No. G.T.O. 1008 died and some persons received injuries. Therefore, the claimants as well as the heirs of the deceased filed the aforesaid claim petition which came to be partly allowed which is challenged in the present appeals.
3.0 Learned advocate for the appellant contended that the deceased as well as the claimants were travelling in the goods vehicle. 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 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 Smt. Mallawaa etc. versus Oriental Insurance Co. Ltd. and others reported in AIR 1999 SC 589.
4.0 Learned advocate for the respondents supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
5.0 Heard learned counsel for the parties. I have gone through the averments made in the appeal 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 contended before the Tribunal that the tempo was a goods vehicle and therefor, the person cannot travel in the tempo passengers. Therefore, the insurance company would not liable to pay compensation.
5.1 In the case of Mallawa and others(supra) the Apex Court has held that the insurance company is not liable for death or injuries sustained by persons carried in a goods vehicle either along with their goods or after paying fare or gratuitously.
6.0 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 contention 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.
7.0 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 and claimants were travelling as passengers in a goods vehicle. The quantum of compensation awarded is just and proper and in accordance with the evidence on record.
8.0 For the foregoing reasons, the appeals are allowed accordingly.
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. The rate of interest on the amount shall be at the rate of 9% per annum. The amount if any lying with this Court, shall be transmitted to the concerned Tribunal and the same shall be refunded to the insurance company. The award of the Tribunal is modified accordingly. No costs.
(K.S.JHAVERI, J.) niru*