1. By way of this appeal, the appellant- Insurance Company has challenged the judgment and award dated 22.01.2002, passed by the Motor Accident Claims Tribunal(Main), Ahmedabad (Rural), in Motor Accident Claim Petition No.44 of 1987, whereby the tribunal has awarded the compensation of Rs.36,200/- with interest at the rate of 12% per annum from the date of filing of the petition, till realization and proportionate costs.
2. The brief facts leading to filing of this appeal are that on 01.06.1986 the claimant was travelling in Matador No.GRQ-5236 alongwith vegetables bags etc., for which fare was to be paid. At that time a Truck No.GRT-8784 driver in rash and negligent manner by its driver and dashed with the Matador. As a result thereof, the claimant had sustained severe injures. Therefore, the claimant filed aforesaid claim petition before the Motor Accident Claims Tribunal (Main), Ahmedabad (Rural).
3. The learned tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred by the present appellant.
4. Learned counsel for the appellant contended that the issue involved in this appeal is squarely covered by the decision of the Apex Court in the case of Mallawa and Ors. Vs. New India Assurance Company Ltd. reported in 1999 ACJ 1. Therefore, the judgment and award passed by the tribunal against the appellant is illegal, unjust and requires interference by this Court.
5. Learned advocate for the respondent has supported the judgment and award passed by the Tribunal and submitted that present appeal deserves to be dismissed.
6. I have heard learned counsel for the respective parties and perused the record as well as the judgment and award of the Tribunal. Learned advocate for the respondents is not in a position to dispute that the original claimant was travelling in the goods vehicle, therefore, I am of the opinion that the contention of learned advocate for the appellant is required to be accepted, in view of the decision of the Apex Court in the case of Mallawa's case (Supra). The Insurance Company is not liable for compensation.
7. In that view of the matter, the appeal is required to be allowed, therefore, the same is allowed. If the amount is lying in the tribunal, the same shall be refunded to the Insurance Company and in case the amount is withdrawn by the claimants, the Insurance Company shall not recover the same from the claimant. However, it will be open for the Insurance Company to recover the amount from the owner of the vehicle.
mehul [K.S.JHAVERI,J.]