1.0 This appeal is directed against the judgement and award dated 26.04.1996 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar ( for short “the Tribunal”) in Motor Accident Claim Petition No. 40 of 1993 whereby claim petition preferred by the claimants came to be partly allowed by awarding compensation in the sum of Rs.1,16,000/ along with interest @ 15% from the date of application till its realization.
2.0 On 20.09.1992 at about 9.00 A.M. when one Nirbhadrasinh Pravinshah was going from his field on Tractor driven by opponent No.5 original opponent No.1 and owned by opponent No.6 original opponent No.2 to go to his Village with Halar and as the Tractor had to pass a slope, Nirbhandrasinh got down from the Tractor and started to walk on the left side of the tyre. All of a sudden air emitted from the tyre and, therefore, the tractor and Hallar turned turtle and dashed with him as a result of which, he sustained serious injuries and died on the spot. The legal heirs of the deceased therefore, preferred the aforesaid claim petition before the Tribunal wherein the aforesaid award came to be passed which is challenged in the present appeal.
3.0 Learned advocate appearing for the appellant submitted that learned Tribunal erred in holding that the appellant Insurance Company is liable for the payment of compensation; that the learned Tribunal failed to appreciate that the deceased was a passenger on a tractor and that the liability of such a passenger was neither required to be covered nor as a matter of fact covered by the policy; there has been breach of condition of the policy in view of the fact that the deceased was sitting on Hallar which was attached to the Tractor as per the statement made by the driver in the F.I.R. He submitted that since the Hallar which was attached to the Tractor is not insured with the insurance company, the Insurance Company is not liable to pay compensation to the claimants.
4.0 Learned advocate appearing for the respondents supported supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed,
5.0 Heard learned advocates for the parties and perused the documents on record. It was stated by the appellant Insurance Company in written statement before the Tribunal that the deceased was travelling in an offending Tractor as an unauthorized and illegal passenger. Further, the opponent No.1 original opponent No.5 in the F.I.R categorically stated that the deceased was sitting on Hallar which was attached to the Tractor. The Hallar on which the deceased was sitting was not insured with the Insurance Company. Hence, there is contradiction between the complaint and the memo of petition as well as deposition of the mother regarding the way in which the accident occurred. Hence, the contentions raised by the appellant are accepted. The insurance Company is not liable to pay compensation to the claimants. The award of the Tribunal holding that the Insurance Company is liable to pay the compensation to the claimants is quashed and set aside. The Appeal is allowed. It is held that the Insurance Company is not liable to pay compensation to the claimants.
6.0 If the claimants had withdrawn the amount deposited by the appellantInsurance Company, the same will not be recovered from the claimants by the Insurance company. The Insurance Company is at liberty to recover the the same from the owner of the vehicle. If the amount is lying in the F.D.R before the Tribunal, the same to be withdrawn by the Insurance Company. The claimants can recover the amount of compensation from the owner of the vehicle if they have not withdrawn the same. No Costs.
(K.S.JHAVERI, J.) niru*