1. Both these appeals arise out of common judgment and award rendered by learned Motor Accident Claim Tribunal (Aux), Junagadh on 29.09.2007 in Claim Petition No.571 and 572 of 1995. In connection with Claim Petition No.571 of 1995, the Tribunal awarded compensation of Rs.81,225/- in favour of respondent no.1 (original claimant) and in connection with Claim Petition No.572 of 1995, the Tribunal awarded compensation of Rs.72,500/- in favour of respondent no.1 (original claimant) in said Claim Petitions.
2. The common judgment and award rendered by the Tribunal in connection with Claim Petition No.571 of 1995 is challenged by preferring First Appeal No.2424 of 2008 by the appellant-original opponent no.3 and the common judgment and award passed in connection with Claim Petition No.572 of 1995 has been challenged by original opponent no.3 (appellant herein) by preferring First Appeal No.2425 of 2008. Since, both the appeals arise out of the common judgment and award rendered by the Tribunal, both these appeals are heard together and are being disposed of by this common judgment.
3. Mr.Parikh, learned advocate for the appellant (Opponent No.3 Insurance Company in both the above numbered claim petitions), at the outset, submitted that the instant appeals are confined only to one issue viz. whether the private car could be permitted to be used for carrying passengers for hire?
3.1 Mr.Parikh, learned advocate for the appellant, submitted that as admitted by the claimants in their claim petitions, according to them, vehicle bearing Registration No.GJ.3.B.9016, which was ambassador car and which was involved in the accident was a private passenger taxi. Even during the course of evidence, the injured claimant described the vehicle as passenger taxi.
3.2 Mr.Parikh, learned advocate for the appellant, submitted that as a matter of fact, the vehicle involved in the accident was a private car. In support thereof, from the record of the Tribunal, Mr.Parikh, learned advocate for the appellant, drew my attention to the Insurance policy Exh.53 and submitted that in the said Insurance Policy itself, the vehicle is described as “Private Car Policy”. It is further submitted that in the description of Make and year of manufacture etc. in the policy, it has been described as Ambassador of Make 1983 and it is described as private car. My attention was also drawn to the xerox copy of registration book of the vehicle, Exh.43 wherein also the vehicle is described as private car.
3.3 Mr.Parikh, learned advocate for the Gambhirsinh and Others, reported in 2005(3) GLR 2372 and the National Insurance Co.Ltd. Versus. P.M.Vasava, reported in 1995(2)GLR 1352.
3.4 Mr.Parikh, learned advocate for the appellant, also took me through the relevant clause in the policy whereby it has been specifically stated that the policy does not cover the use for hire or reward or for organized racing etc. Mr.Parikh, learned advocate for the appellant, further submitted that this is the only contention which is raised in connection with these appeals and he requests that the appellant-Insurance Company may be exonerated.
4. None appeared for the respondents including the original claimants though served.
5. I have taken into consideration the submissions advanced by Mr.Parikh, learned advocate for the appellant, in context with the record and proceedings of the concerned Claim Petitions.
6. At the outset, it is pertinent to note that now both the appeals are confined only to one issue viz. the nature of the vehicle which was involved in the accident i.e. whether it was taxi or private car. There is no dispute that in the Claim Petitions filed by the respondents claimants as well as in their oral evidence before the Tribunal, the claimants described the vehicle as taxi car. Perusing the impugned judgment and award rendered by the Tribunal and more particularly, Para-10, in said judgment, it clearly transpires that the appellant-Insurance Company categorically raised the defence that the vehicle involved in the accident was private owned car and not taxi car. However, it transpires that on behalf of the claimants, it was submitted that since in the policy, it is stated that the premium is covering the risk of “5 Pass”, and therefore, the vehicle car was taxi car as the term “Pass” means the passenger. It transpires that the Tribunal accepted such submission made on behalf of the original claimant and held that the car was taxi car and accordingly, the Tribunal fastened the liability of the Insurance Company to pay the compensation to the Claimant. In connection with the above discussion, I have taken into consideration full text of copy of Insurance policy at Exh.53 produced before the Tribunal. It is true that in column of liability of the Insurance policy “5 Pass” is mentioned, and therefore, the Tribunal came to the conclusion that the word “5 Pass” means passenger and accordingly the vehicle was taxi car and not private owned car. Considering the copy of policy, on the top of the policy, the policy is described as private car policy. Even in the description of the car, it has been described as ambassador of make 1983 and P/Car means private car. As submitted above, Mr.Parikh, learned advocate for the appellant-Insurance Company drew my attention to the R.C.Book of the Car and nothing transpires that the same was taxi car.
7. In above view of the matter, this Court is of the opinion that observation made by the Tribunal that only in column of liability of Insurance Company “5 Pass” is mentioned, and therefore, the vehicle car involved in the accident was taxi car cannot be said to be correct observation. I have also taken into consideration the ratio laid-down by this Court in above referred P.M.Vasava's Case as well as above referred Morbi Taluka Panchayat's Case. I have also taken into consideration relevant statutory provisions of the Motor Vehicle Act and the condition laid-down in the policy that the policy does not cover the use for hire or reward. In above view of the matter, both these appeals deserve to be allowed and the appellant original opponent no.3-New India Assurance Company Ltd. deserves to be exonerated. Remaining part of the award qua the original opponents namely driver and owner of the vehicle shall remain intact and consequently, the original claimants shall be entitled to recover the awarded amount of compensation from the driver and owner of the car. It has been brought to my notice that vide order dated 23.07.2008 upon the appellant-Insurance Company depositing the entire awarded amount with the concerned Tribunal, this Court directed that 70% amount of deposit shall be invested in the F.D.R. in any nationalized bank in the name of claimants initially for the period of five years with cumulative interest with periodical renewal till the appeal is finally decided by this Court. It was further directed in the order that the F.D.R. shall remain in the custody of Nazir of the concerned Tribunal till the appeal is finally decided by this Court. It was further directed that 30% amount of the deposit i.e. deposited by the appellant-Insurance Company pursuant to the aforesaid order shall be paid to the concerned respondents-claimants. In view of the fact that the appellant-Insurance Company is ordered to be exonerated, the appellant-Insurance Company shall be entitled to recover back the amount lying in the F.D.R. However, so far as 30% amount already paid by the Tribunal to the respective claimants is concerned, considering the facts and circumstances of the case and considering the fact that the said amount was ordered to be paid way back in the Year-2008, this Court feels that the said amount may not be recovered by the appellant-Insurance Company from the respective claimants but, the appellant-Insurance Company may recover the said amount from the respective opponents before the claim Tribunal, who are driver and owner of the offending vehicle car.
8. For the foregoing reasons, both these appeals are allowed and the common judgment and award rendered by the Motor Accident Claim Tribunal (Aux) Junagadh on 29.09.2007, in Claim Petition No.571 and 572 of 1995 is set-aside qua the appellant-New India Assurance Company Ltd and the appellant is hereby exonerated from the liability to pay the amount of compensation fixed by the Tribunal in favour of the claimants.
9. Since, the entire amount of compensation awarded by the Tribunal was already deposited by the appellant-Insurance Company with the Tribunal and out of said amount, since 70% amount is lying in the F.D.R. in a nationalized bank, the appellant- Insurance Company shall be entitled to recover back the amount lying in the F.D.R. since the appellant is exonerated from the liability to pay compensation. However, remaining 30% amount which was already disbursed by the Tribunal to the claimants is concerned, the appellant-Insurance Company shall not be permitted to recover the said amount from the claimants, but the appellant-Insurance Company is held to be entitled to recover said amount from the opponents-driver and owner of the offending vehicle-motor car. Similarly, the original claimants are hereby held to be entitled to recover the above mentioned 70% of the amount of compensation which was lying in the F.D.R. and which amount shall now be recovered back by the appellant-Insurance Company, from the opponents- driver and owner of the offending vehicle- motorcar. No Costs.
Girish
(J.C.UPADHYAYA,J.)