1.0 This appeal is directed against the judgement and award dated 15.03.2010 passed by learned Motor Accident Claims Tribunal (Aux.) FTC No.3, Morbi, in Motor Accident Claim Petition No.221 of 2002 whereby the Tribunal has awarded a sum of Rs.2,20,500/ along with interest at the rate of 7.5%.
2.0 On 09.04.2002 Amit was traveling on Kawasaki Bajaj Motor Cycle No. GJ3CC9276 on MorbiRajkot Road and Nanji Chaturbhai Likhiya came on a bullet Motor Cycle bearing No.GJ3FF7446 came on wrong side and dashed with the Kawasaki vehicle as a result of which Amit sustained serious injuries and succumbed to the same. His legal heirs therefore filed the aforesaid claim petition wherein the aforesaid award came to be passed.
3.0 Learned Advocate for the appellant submitted that the driver of the vehicle is the owner of the motor vehicle and the owner cannot be a recipient of compensation as the liability to pay the same is on him. He further submitted that the Tribunal has committed an error in not properly considering the ratio laid down in the case of of Ningamma & Anr V. United India Insurance Co. Ltd. He also submitted that in the same incident the driver of Bullet Motor Cycle died and his legal heirs filed Motor Accident Claim Petition No.146 of 2002 which came to be dismissed holding that the driver of the Bullet Motor Cycle was negligent. In that view of the matter no liability can be fastened on the present appellant.
4.0 It is required to be noted that the person who was traveling on “Bullet” motorcycle viz. Nanjibhai Chathurbhai also died and his legal heirs preferred Motor accident Claim Petition No.146 of 2002. However, the Tribunal rejected the said claim petition. Against the said order First Appeal No.2812 of 2010 was filed before this Court. This Court in para 4 of the said order it is held as under:
“4. Having considered the contentions raised by the learned counsel for the appellants, averments made in the appeal and the documentary evidence produce don record, it transpires that the Tribunal after taking into consideration all the relevant documents and evidence on record has rejected the claim petition filed by the appellants. The Tribunal has on the basis of the panchnama of scene of accident as well as the FIR categorically observed that the vehicle of Nanjibhai (deceased) was being plied on the wrong side and thereby he sustained injuries. Further, the appellants have failed to prove beyond reasonable doubt that the deceased was not responsible for the accident. On the contrary, the panchnama of scene of accident and the FIR goes against the appellants.”
5.0 Thus, the said appeal came to be dismissed holding that the driver of the Bullet Motor cycle was responsible for the accident.
6.0 It is therefore clear that in the accident the driver of the Bullet Motor Cycle bearing No.GJ3FF7446 was negligent and the appellant is the insurer of Kawasaki Bajaj Motor Cycle bearing No.GJ3CC9276. When the other motor cycle is held to be negligent, naturally the present appellant cannot be held to be liable to make the compensation. The Tribunal has therefore committed an error in fastening the liability on the present appellant.
7.0 In the premises aforesaid the judgement and award of the Tribunal is quashed and set aside qua the present appellant. The amount deposited by the insurance company shall be refunded to it. If the amount is withdrawn by the claimant, it will be open to the insurance company to recover the amount from the owner of the vehicle. Appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.JHAVERI, J.) niru*