Jasvantsinh Fatesinh Handa & 4 ­ Defendants

1. This appeal has been preferred against the judgment and award dated 12.10.1999 passed by the Motor Accident Claims Tribunal (Aux.), Panchmahals at Godhra in M.A.C.P. No.1486/1991 whereby, the claim petition was partly allowed.

2. The facts in brief are that on 07.08.1988 at around 1200 hrs., while respondent no.1 herein, original claimant, was going to Nadiad in a Jeep bearing registration no. GAM 8470 driven by original opponent no. 1, it turned turtle on account of the rash and negligent driving. As a result of the said accident, respondent no.1 severe bodily injuries and ultimately, respondent no.1 filed claim petition before the Tribunal claiming compensation of Rs.7.00 lacs. However, the Tribunal partly allowed the claim petition by awarding Rs.3,98,000/­ as compensation along with interest at the rate of 12% per annum from the date of application till its realization. Both the appellant­Insurance Company and respondent no.2 were jointly and severally held liable to pay the aforesaid amount. Being aggrieved by the same, the appellant has preferred the present appeal.

3. Heard learned counsel for the respective parties and perused the documents on record. The main contention raised on behalf of the appellant­Insurance Company is that the policy expressly prohibited carriage of passengers on hire or for reward and therefore, the Tribunal ought not to have held the appellant­ Insurance Company liable in view of the decision of the Apex Court in the case of National Insurance Company Ltd. v.

Savitri Devi and others etc., 2012(4) SCALE 111.

4. It appears from the record that the vehicle in which the claimant was travelling at the time of accident limits the use only for social, domestic and pleasure purposes and for the insured's own business. The policy does not cover use for hire or reward or for organized racing and pacemaking, reliability trials, speed testing the carriage of goods [other than sample] in connection with any trade or business or for any purpose in connection with Motor Trade. Under the provisions of the M.V. Act, the Insurance Company cannot be fastened with the liability of making payment of compensation, if any injury is caused or death takes place while travelling in such vehicle when the person concerned is not the 'employee' of the owner of such vehicle. In the present case, the claimant was travelling as gratuitous passengers. Considering the facts of the case and in view of the principle rendered in Savitri Devi's case (supra), the appellant­Insurance Company cannot be saddled with the liability of making payment of compensation and hence, it is required to be exonerated from such liability.

5. For the foregoing reasons, the appeal is allowed. The impugned judgment and award passed by the Tribunal is quashed and set aside only qua the extent of imposition of liability upon 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 claimant, then the same shall not be recovered from the original claimants but, shall be recovered from the owner of the offending vehicle and if the amount has not been withdrawn by the original claimant, then the same shall be refunded to the Insurance Company and the claimant shall be at liberty to recover the balance amount from the owner of the offending vehicle. Registry is directed to transmit the amount lying with this Court to the Tribunal concerned forthwith. The impugned award stands modified to the above extent. The appeal stands disposed of accordingly. No order as to costs.

[K.S. JHAVERI, J.] ORDER IN CROSS OBJECTION ;

In view of the order passed in the appeal, the cross objection stands dismissed.

[K.S. JHAVERI, J.] /phalguni/