1. By way of these appeals, the appellants have challenged the award dated 18.10.2005 passed by the Motor Accident Claims Tribunal (Aux) at Amreli in Motor Accident Claims Petition No. 142, 170, 216, 217 & 224 of 2002 whereby the Tribunal awarded compensation of Rs. 220000/-, Rs. 825000/-, Rs. 28400/- & Rs. 25000/- & 69600/- respectively alongwith interest and costs payable by the original opponents to the original claimant.
2. The original claimants had filed claim petition seeking compensation in respect of the vehicular accident which occurred on 28.02.2002 when the deceased/injured were travelling in a Goods Rickshaw bearing No. GJ-14-T-5310 along with their goods. It is the case of the appellants that while the vehicle reached Dhari ByePass , 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. Dakshesh Mehta, 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 deceased/injured were travelling in the goods vehicle.
3.1 Mr. Mehta 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. Mankad, learned counsel appearing for Mr. Buch and Mr. Harshit Tolia, learned advocate 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.
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 panchnama of scene of offence that no goods were found from the place of accident. Even the FIR does not mention anything about the passengers travelling with the goods. Moreover, the cheque for the amount of premium was dishonoured and the policy was cancelled by the appellant insurance company. The insured was also intimated about the cancellation of the insurance policy vide letter dated 11.09.2001 which is much prior to the accident.
5.1 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 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 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//