1. The appellant-Insurance Company has preferred these appeals against the common judgment and award dated 28.02.2001 passed by the Motor Accident Claims Tribunal(Auxi.) Rajkot,(for short, "the Tribunal") in M.A.C.P. Nos. 1339 of 1996 and 1327 of 1996, whereby, the tribunal has awarded compensation in the sum of Rs.55,000/- to the claimant of M.A.C.P. No.1339 of 1996 and Rs.3,72,000/- to the claimants of M.A.C.P. No.1327 of 1996 respectively, with interest at the rate of 09% per annum from the date of filing of the petition till realization.
2. The facts in brief are that on 28.10.1996, one Tapubhai Bhikbhabai Fangaliya and one Nathabhai Hathabhai Toliya were travelling in a Delivery Van Rickshaw bearing registration No.GJ-10-U-4136. The driver of the said truck was driving his vehicle rashly and negligently, therefore, he lost control over his vehicle and the said Truck turned turtle. As a result of the said accident Tapubhai Bhikbhabai Fangaliya sustained grievous injuries and Nathabhai Hathabhai expired. Therefore, claim petitions have been filed before the Tribunal for compensation. The Tribunal after hearing learned advocates for both the parties and after perusing the record decided the claim petitions and passed the award as stated hereinabove, against which the present appeals are filed by the appellant- Insurance Company.
3. On behalf of the appellant, Mr. Mehta, learned advocate, inter alia contended that the vehicle in question was a goods vehicle and use of the goods vehicle for carrying passengers is prohibited and therefore the insurance company was not liable to pay the compensation.
4. Even otherwise, the no person in any capacity was permitted to travel in a goods vehicle in view of the decision of the Supreme Court in the case of New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223], wherein it was categorically held:
"20.
It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people."
5. In view of the aforesaid discussion, the insurance company is not liable to pay the compensation to the claimant. Therefore, the present appeals are allowed. The amount deposited by the appellant - insurance company, if lying in the FDRs, shall be refunded to the insurance company. However, if the amount is already withdrawn by the claimants, the insurance company is at liberty to recover the same from the owner of the vehicle and not from the claimants.
[K.S.JHAVERI,J.] pawan Top