1. By way of these appeals, the appellant has challenged the award dated 05.06.2006 passed by the Motor Accident Claims Tribunal, Rajkot in Motor Accident Claims Petition No. 519, 518, 520, 521 & 542 of 1996 whereby the Tribunal awarded compensation alongwith interest and costs payable by the original opponents to the original claimants.
2. The original claimants had filed claim petition seeking compensation in respect of the vehicular accident which occurred on 31.03.1996 when the claimants were travelling in a Chhakda Rickshaw bearing No. GRP 6925 along with their goods. It is the case of the appellants that while the vehicle reached the scene of accident, the driver drove the rickshaw in a rash and negligent manner and the vehicle turned turtle. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Sunil Parikh, learned counsel for the appellant has contended that the Tribunal ought to have exonerated the Insurance Company and ought to have dismissed the claim of the claimants against the insurance company and that the Tribunal ought to have held that the driver and owner are jointly and severally liable to pay compensation to the claimants. He submitted that the Tribunal ought to have considered that the claimants were travelling in the goods vehicle and there was clear breach of the terms of the policy as the risk of passengers was neither required to be statutorily covered nor as a matter of fact covered.
3.1 Mr. Parikh further submitted that looking to the panchnama and FIR, the Tribunal ought to have considered that the passengers were travelling unauthorisedly in a goods vehicle. He submitted that the goods alleged to have been carried along with the passengers is not covered under the definition of 'goods' under the Motor Vehicle Act.
3.2 Mr. Parikh has relied upon a recent decision of the Apex Court in the case of National Insurance Company Ltd. vs. Savitri Devi And Others etc reported in 2012(4) SCALE 111 and submitted that considering that the vehicle was being used under clear violation of the terms and conditions of the policy the insurance company cannot be held liable.
4. Mr. Rachh, learned counsel appearing for the respondents supported the award of the Tribunal and submitted that the Tribunal has passed the award in accordance with law after considering the facts and circumstances of the case and therefore no interference is called for in the matter. He alternatively, also submitted that looking to the smallness of amounts of the claims in appeal, this court may dismiss the appeals.
5. This court has heard the parties and perused the papers on record. The contention raised by the learned advocate for the appellant is that the insurance company is required to be exonerated. As regards this it is borne out from the records that the passengers were not travelling with any goods as none of the documents support the case of the claimants. The only source of evidence with the claimants is the affidavit filed by them. However, the same is not corroborated with any other documents like receipt of the goods, consignment note, receipt of fare etc.
5.2 Even if it is considered that the claimants were travelling with the goods as alleged by them, the definition of goods as per Section 2(13) of the Motor Vehicles Act, 1988 is required to be perused which reads as under:
“"goods" includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle; “
5.3 Under the said circumstances, the claimants failed to prove that they were carrying goods as defined under the Motor Vehicles Act. It is the say of the claimants themselves that they were going to pray to Surapura for nived purpose. No mention of any goods is there in the panchnama of scene of accident and if any materials for nived purpose is carried by the claimants along with them, the same cannot be considered as 'goods' as defined under the Act.
5.4 In the case of National Insurance Company (Supra), the Apex Court has held that when there is a specific finding that the vehicle in question is a “Goods Carrying Vehicle”, the insurance company cannot be held liable when the vehicle was being used for carrying passengers. The insurance policy was produced before the Tribunal. The rickshaw was a good vehicle and therefore, breach of terms and conditions of the insurance policy is committed. Moreover, it is also borne out that the appellants were traveling in the said goods carrying vehicle as illegal passengers in absence of any evidence regarding owner of the goods and therefore the Tribunal ought to have exonerated the insurance company from any claim.
6. Accordingly, appeals are allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance company-present appellant. The amount deposited by the insurance company shall be transmitted by the Registry of this Court to the Tribunal, if lying with this Court. The same shall be refunded along with proportionate interest to the appellant insurance company by the Tribunal. It will be open for the claimants to recover the same from the owner of the vehicle. However, if the amount has been withdrawn by the claimants, it shall be open to the insurance company to recover the same from the owner of the vehicle. The award of the Tribunal is modified accordingly.
(K.S. JHAVERI, J.) Divya//