By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1986 the appellant – original opponent No.3 has challenged the judgment and award dated 14th July 2004 passed by the learned Motor Accident Claims Tribunal (Main), Surat in MAC Petition No.790 of 1988 whereby the Tribunal has awarded Rs.112,000 to the claimants. 2. The short facts of the present appeal are that respondents Nos.1 and 2 herein – original claimants had filed the aforesaid claim petition claiming that their son – Bhupendrabhai had died in an accident which took place on 20th March 1988. It is their case that their son was going on Tractor bearing No.GTB 8 and when the Driver of the said Tractor applied sudden brakes, deceased lost control and fell down off the Tractor and received grievous injuries. It is their case that their son – Bhupendrabhai was shifted to Ashaktashram Hospital at Surat where during the course of treatment he succumbed to the injuries. The claimants have filed claim petition claiming compensation of Rs.2 lakhs. The Tribunal has partly allowed the said appeal by awarding Rs.1,12,000 to the claimants to be recovered from all the opponents jointly and severally.
3 Learned counsel for the appellant – insurance company has submitted that the deceased was an unauthorised passenger in the goods carriage and therefore the liability cannot be fastened on the appellant-insurance company. Learned counsel for the appellant has relied upon the decision of the Apex Court in the case of National Insurance Company Ltd. v. Savitri Devi & Others, reported in 2012 (4) SCALE 111.
4 Learned counsel for the respondent has supported the judgment and order of the Tribunal and submitted that no interference is warranted.
5. Heard learned counsel for the parties and perused the documents on record. It is not in dispute that the claimants have travelled in the 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. In view of the aforesaid discussion, the insurance company is not liable to pay the compensation to the claimant.
6. The Tribunal has failed to consider that there is a clear breach of the Policy and the vehicle which was registered as a private vehicle was used for carrying the passengers for hire and reward. In light of the aforesaid discussion, the impugned judgment and orders passed by the Tribunal cannot be sustained. The same are hereby set aside and quashed. No liability can be fastened on the appellant insurance company. The appeals of the appellant are allowed to this extent. However, it is clarified that if any amount has already been paid by the Insurance Company, it shall not be permissible for it to recover the same from the claimants. It is also clarified that if the claimants are entitled to recover the balance amount of the compensation awarded to them, they can recover the same from the estate of the owner.
(K.S.Jhaveri, J.) *mohd