1.0 The above appeals are directed against the judgement and award dated 20.02.1998 passed by the Motor Accident Claims Tribunal, Morvi in Motor Accident Claim Petition No. 254 of 1989 and Motor Accident Claim Petition No. 123 of 1992 whereby the learned Tribunal has awarded a sum of Rs. 3, 20,000/ as compensation in M.A.C.P. No. 254 of 1989 and Rs. 53, 600/ in M.A.C.P. No. 123 of 1992 along with interest @ 15% per annum from the date of accident.
2.0 On 19.10.1987 at about 2.00 A.M., one Mansukhlal Kansagara and Shantilal Hansaraj Kansagara were travelling in the Truck No. G.T.K 5114 with their bullock and household goods and were going to Village Umiya of Rapar Taluka in Kutch District. The truck which was driven by the driver in a rash and negligent manner lost control when it reached near Village Chandrapur on Chotila Wankaner Highway road. As a result of this, Mansukhbhai succumbed to the injuries and the claimant Shantibhai sustained serious injuries. The heirs of the deceased as well as claimants have preferred aforesaid claim petitions before the Tribunal wherein the aforesaid award came to be passed.
3.0 Learned advocate appearing for the appellantInsurance Company mainly contended that the vehicle involved in the accident was goods vehicle and therefore the insurer would not be liable to pay compensation for the death of the deceased as well as claimants who were travelling in a goods vehicle and met with death of bodily injuries on account of an accident. He further submitted that the accident occurred prior to the amendment in 1994 in Motor Vehicles Act 1988. In support of his contention he placed reliance on the decision of the Hon’ble Apex Court in case of Smt. Mallawaa etc. versus Oriental Insurance Co. Ltd. and others reported in AIR 1999 SC 589.
4.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the Insurance Company is liable to pay compensation to the claimants.
5.0 From the perusal of the award, it is clear that the present appellant had strongly contended before the Tribunal that the truck was a goods vehicle and under the terms and conditions of the policy it does not cover the risk for the use of the vehicle for the conveyance of passenger for hire or reward. In the case of Mallawa and others(supra) the Apex Court has held that the insurance company is not liable for death or injuries sustained by persons carried in a goods vehicle either along with their goods or after paying fare or gratuitously.
6.0 As a result of hearing and perusal of records and in view of the decision of the Apex Court, I am of the opinion that the contentions raised by the appellant is required to be accepted. The fact that the vehicle in question was a goods vehicle cannot be disputed and therefore the appellant cannot be held liable to undertake third party risk in a case where the vehicle is used for a purpose other than the one for which the policy is covered.
7.0 In view of the above the insurance company is not liable to pay the compensation to the claimants since the vehicle involved was goods vehicle and deceased and claimants were travelling as passengers in a goods vehicle. The quantum of compensation awarded is just and proper and in accordance with the evidence on record.
8.0 However, looking to the trend of award of interest, rate of 15% is on higher side and the same is required to be reduced from 15% to 12%. It is accordingly ordered.
9.0 For the foregoing reasons, the appeals are allowed accordingly. The impugned judgment and award passed by the Tribunal is quashed qua the extent of imposition of liability on 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 claimants, the same shall not be recovered from the original claimants and the Insurance Company shall be at liberty to recover the same from the owner of the vehicle. If the amount is not withdrawn by the original claimants, it will be open to them to recover the same from the owner of the vehicle. The rate of interest on the amount shall be at the rate of 12% per annum. The award of the Tribunal is modified accordingly. No costs.
(K.S.JHAVERI, J.) niru*