1.0 This appeal is directed against the judgement and award dated 15.12.2009 passed by the learned Motor Accident Claims Tribunal (Main), Nadiad in Motor Accident Claim Petition No. 1511 of 2009 whereby the learned Tribunal has partly allowed the claim petition by awarding a sum of Rs. 2,61,500/ as compensation along with interest @ 9% per annum from the date of application till realization.
2.0 On 30.10.2008 i.e in the midnight of 29.10.2008 at about 2.00 O' clock, Prabhatsinh Amrasinh Chauhan was returning in the Tractor bearing No. G.J.23 B.6837 and when the truck was passing on PratappuraKhanpur Road, the Tractor on account of a slob fell down and wheel was turned over him. As a result thereof, Prabhatsinh Amarsinh Chauhan died in the vehicular accident. The legal heirs of the deceased filed the aforesaid claim petition wherein the learned Tribunal has passed the aforesaid award which is challenged in the present appeal.
3.0 Learned advocate for the appellant contended that the deceased was sitting on the mudguard of the tractor and was traveling as unauthorized passenger and therefore the Insurance Company is not liable. He further submitted that the Tribunal erred in holding that additional premium of Rs.800/ is paid to cover the risk of third party and therefore Insurance Company is liable. He pointed out that the deceased was unauthorized passenger traveling and he cannot be termed as third party. The learned Counsel also submitted that the multiplier of 15 and the rate of interest at 9% are on higher side.
Learned advocate for the appellant has also contended that the Tractor cannot be considered to be a commercial vehicle and claimant cannot be considered to be third party.
4.0 In order to decide the controversy in the appeal this Court is required to look into the conditions of policy. The legal liability pertaining to nonfare paying passenger is set out in IMT 37A which reads as under:
“IMT 37 A – Legal Liability to Non Fare Paying Passengers who are not employees of the Insured (Commercial Vehicles only).
In consideration of the paying of an additional premium of Rs…. And notwithstanding anything to the contrary contained in section II1[c] it is hereby understood and agreed that the company will indemnify the insured against his legal liability other than liability under statute (except Fatal Accidents Act, 1855) in respect of death or bodily injury to any person not being an employee of the insured and not carried for hire or reward provided that the person is:
[a] charterer or representative of the charterer of the truck
[b] any other person directly connected with the journey in one form or the other being carried in or upon or entering or mounting or alighting from vehicle insured described in the SCHEDULE OF THIS POLICY.”
5.0 There is no dispute that the vehicle in question is a Tractor and Prabhatsinh was returning to his village after “Bhajan” and he was sitting on the Mudguard of the Tractor. The vehicle was running for the agricultural use and it is a goods vehicle. Therefore it cannot be said that he was a third party. The deceased was not a charterer or representative of the charterer nor was he directly connected with the journey in one form or the other. He was an unauthorized passenger whose risk is not covered by the policy. It is also clear that the tractor is not a commercial vehicle and the policy in question was a package policy. Therefore the Tribunal has committed an error in holding that the risk of the deceased was covered by the policy. In fact the deceased was unauthorized passenger traveling on mudguard of the tractor and cannot be termed as third party so as to get the benefit of the policy.
6.0 In the premises aforesaid, the impugned award becomes bad and illegal qua the Insurance Company. Accordingly the same is quashed and set aside qua the Insurance Company. It is held that the Insurance Company is not liable to satisfy the award in question. The amount, if deposited by the Insurance Company, shall be refunded to it. It will be open to the claimants to recover the amount from the owner of the vehicle. Appeal is allowed accordingly with no order as to costs.
(K.S.JHAVERI, J.) niru*