1. By way of these appeals, the appellants have challenged the judgement and award dated 24.01.2001 passed in M.A.C.P No. 8/1989, 9/1989 10/1989, 11/1989, 1542/1989, before the Motor Accident Claims Tribunal, Ahmedabad (Rural) whereby the tribunal has partly allowed petitions.
2. Brief facts of the cases are that:
2.1 On 11.12.1988 at about 7.45 a.m. in the sim of village Bhojva on Viramgam-Mandal road, some persons were travelling in the luxury bus No. G.Q.E. 3055 while some persons were travelling in matador No. G.R.U. 4077 alongwith their goods on hire basis. The luxury bus was going to viramgam. Both the vehicles collided with each other. Some of the passengers died and some of the injured.
2.2 Heirs and legal representatives of deceased have filed aforesaid M.A.C.Ps before the claims tribunal for getting compensation.
2.3 The tribunal vide aforesaid judgement and award dated 24.01.2001 has partly allowed the petitions. Being aggrieved by the said judgement and award present appellant has filed appeals.
3. Counsel for the appellant has submitted that in view of the pleadings and the evidence on record, the issue is squarely covered in case of Smt. Mallawwa etc. Vs. The Oriental Insurance Co. Ltd. reported in JT 1998 (8) SC 217 wherein it was held as under:
“The correct test to determine whether a passenger was carried for hire or reward would be whether there has been a systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. It would not be proper to consider a goods vehicle is a passenger vehicle on the basis of a single use or use on some stary occasions at that vehicle for carrying passengers for hire or reward.”
The only question to be considered in miscellaneous appeals is with regard to the liability of the appellant- insurance company.
4. Admittedly in the present case the deceased were travelling in matador. It is an undisputed fact that it was a goods vehicle. There is no evidence on record to show that the deceased/claimant were travelling along with their goods. Thus they were travelling as unauthorized passengers. Even if it is presumed that the deceased were travelling in the insured delivery van as the owner of the goods or passenger on payment of fare of gratuitous passenger, the liability of the insurance company does not arise in view of the settled principle of law laid down by the Supreme Court in the case of Smt. Mallawwa (supra.).
5. On the overall evidence on record, the appeals are required to be allowed. The impugned judgement and awards are quashed and set aside qua the appellant- insurance company. The amount deposited by the insurance company shall be refunded along with cash and interest. In case the claimants have withdrawn the amount, it will be open to insurance company to recover from the owner of the vehicle. Appeal is allowed to the aforesaid extend with no order as to costs.
[K.S.JHAVERI, J.]
Jyoti