1. By way of filing this appeal under section 173 of the Motor Vehicles Act, 1988 the appellant-original claimant has challenged the judgment and order dated 19.3.2012 passed by the learned Motor Accident Claims Tribunal, Nadiad (Aux) in MACP No. 2030 of 2010 whereby the Tribunal has partly allowed the claim petition and awarded Rs. 1,09,800/- against the claim of Rupees Two lakhs and exonerated the Insurance Company.
2. The short facts of the present appeal as set out in the claim petition are that on 16.8.2010 at 14.40 hours, the applicant-appellant along with others was coming back from Balasinhor with fertiliser goods in tempo bearing registration No. GJ 7 UU 5947 and when the said tempo reached near the place of accident i.e. Handiya Wanakbori Road, ahead of sim of village Handiya, due to rash and negligent driving of the driver of a tempo which was on the wrong side of the road, the tempo along with the passengers turned turtle and the applicant-appellant and others who were in the tempo sustained serious injuries. The applicant-appellant filed complaint being CR-I No. 68/10 with Balasinhor police station and filed the aforesaid claim petition claiming compensation of Rs. 2,00,000/-.
3. The Tribunal after considering the oral as well as documentary evidence produced on record has awarded Rs. 1,09,800/- along with interest at the rate of 8% per annum to be recovered from the original opponents No. 1 and 2 but exonerated the insurance company. Hence the present appeal is preferred by the original claimant.
4. Learned Advocate for the appellant has contended that the Tribunal has committed an error in exonerating the insurance company and the Tribunal ought to have, at least, directed the insurance company to pay the amount of compensation to the claimants and thereafter to recover the same from original opponents No.1 and 2. Learned Advocate for the appellant further submitted that the award passed by the Tribunal is bad and erroneous in law and is required to be modified since on the basis of the evidence produced on record the learned Tribunal ought to have awarded full amount with cost and interest as per the settled law. He further submitted that without considering the deposition of the appellant at Exh.20 and FIR Exh. 26 and panchnama Exh.25, the learned Tribunal has come to the conclusion that the accident took place on account of rash and negligent driving on the part of the tempo driver-opponent No.1 but it has not awarded the full amount. The main contention of the learned Advocate for the appellant is that the Tribunal has committed error in exonerating the Insurance Company and the Tribunal ought to have at least directed the Insurance Company to pay the amount of compensation to the claimants and thereafter to recover from opponents No. 1 and 2. On this point, learned Advocate for the appellant has placed reliance on a decision in the case of New India Assurance Co. Ltd. v. Vimal Devi & Ors, reported in II (2011) ACC 102 (SC). He further submitted that though the Tribunal observed in the judgment and award that as per the decision reported in 2002 ACJ 157, adverse inference is drawn against opponent No.1, full amount is not awarded to the appellant. It is his submission that the amount awarded for pain, shock and suffering is very much on the lower side and not awarded full medical expenses also. Finally the learned Advocate submitted that the learned Tribunal has not appreciated the ratio laid down by the Hon’ble Supreme Court in 2011 (2) ACC 102. Therefore it is prayed that the impugned award may be modified and full amount of Rs. 2,00,000/- may be awarded to the appellant with interest @ 12% per annum. In support of his submissions, learned Advocate for the appellant has placed reliance on the decision in Smt. Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2010(1) SC p 17).
5. Having heard the learned Advocates for the parties and having perused the documents on record, this court is of the opinion that the Tribunal is justified in observing that the claimant has 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 compensation. The case of New India Assurance Co. Ltd. (supra) was also cited before the Tribunal and the Tribunal has dealt with the same in the last portion of para 18 of its judgment. It is pertinent to note that in the said case, in the Insurance policy, on the head of “Important Notice”, avoidance clause was there which permitted the claimant to recover the entire amount from the Insurance Company. In the case on hand, the said “Important Notice” had not been disclosed and considering this aspect the Tribunal has rightly held that under Article 142 of the Constitution of India, the Supreme Court can pass ‘pay and recover’ order. In my view, the Tribunal has rightly not passed the said order related to the ‘pay and recover’ and exonerated the Insurance Company more particularly when the said point is pending before the Full Bench of the Supreme Court. In view of the aforesaid, the insurance company is not liable to pay the compensation to the claimant and the impugned judgment and award is just and proper and does not call for any interference by this court.
6. In the result, this appeal fails and it is dismissed accordingly.
[G. B. SHAH, J.] msp