1. This appeal is directed against the common judgment and award dated 31st May 2003 passed by the Motor Accident Claims Tribunal, (Main), Jamnagar (for short, “the Tribunal”) in Motor Accident Claim Petition No.49 of 1996 whereby, the Tribunal has partly allowed the claim petitions preferred u/s. 163-A of the Motor Vehicles Act, 1988 (for short, “the Act”).
2. The short facts of the present case are that the deceased Masri Rama Gagiya was travelling in rickshaw-Chhakda bearing No.GJ.11.T 3339 from Lalpur to Govana with millet gunny bags and when said rickshaw reached near a curve, due to rash and negligent driving on the part of the rickshaw driver, deceased lost control and fell down from the rickshaw and wheel of rickshaw ran over his person due to which he sustained serious bodily injuries . He was taken to Lalpur Government Hospital where the Doctor on duty referred him to Irwin Hospital, Jamnagar where he died during the course of treatment. Heirs and legal representatives of the deceased filed MAC Petition claiming compensation of Rs.2 lakhs. The said application came to be partly allowed by the Tribunal by awarding Rs.1,57,000 and the Driver, Owner and insurance company of the offending vehicle were jointly and severally held liable to pay the amount of compensation to the claimants. Being aggrieved by the same, the appellant – insurance company has approached this Court by way of this appeal.
3. Learned Advocate appearing on behalf of appellant has submitted that the deceased was unauthorised passenger in the goods carriage and therefore the liability cannot be fastened on the appellant-insurance company. It is also submitted that the Driver of Chakada Rickshawa was not having valid driving licence as on the date of the accident. 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