1. By way of these appeals, the appellant-Insurance Company has challenged the common judgment and award dated 16.01.1996, passed by the Motor Accident Claims Tribunal(Auxiliary), Ahmedabad, in Motor Accident Claims Petition No. 168 of 1988 and No.169 of 1988, whereby the tribunal has awarded the compensation of Rs.28,996/- and Rs.1,72,000/- respectively with interest at the rate of 12% per annum from the date of filing of the petition, till realization and proportionate costs.
2. The brief facts leading to filing of this appeal are that the deceased and injured were travelling on a truck and at that time, the original opponent No.1 was driving the truck in excessive speed and the front side wheel of the truck was separated. As a result thereof, the truck was dashed with the neem tree and therefore, the deceased died and other applicant had sustained injures. Therefore, the heirs of the deceased and claimant filed aforesaid claim petitions before the Motor Accident Claims Tribunal (Aux), Ahmedabad.
2.1. The learned tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred by the present appellant.
3. Learned counsel for the appellant contended that the issue involved in this appeal is squarely covered by the decision of the Apex Court in the case of Mallawa and Ors. Vs. New India Assurance Company Ltd. reported in 1999 ACJ 1. Therefore, the judgment and award passed by the tribunal against the appellant is illegal, unjust and requires interference by this Court.
4. Learned advocate for the respondent has supported the judgment and award passed by the Tribunal and submitted that present appeal deserves to be dismissed.
5. I have heard learned counsel for the respective parties and perused the record as well as the judgment and award of the Tribunal. Learned advocate for the respondents is not in a position to dispute that the original claimants were travelling in the goods vehicle, therefore, I am of the opinion that the contention of learned advocate for the appellant is required to be accepted, in view of the decision of the Apex Court in the case of Mallawa's case (Supra). The Insurance Company is not liable for compensation.
6. In that view of the matter, the appeals are required to be allowed, therefore, the same are allowed. If the amount is lying in the tribunal, the same shall be refunded to the Insurance Company and in case the amount is withdrawn by the claimants, the Insurance Company shall not recover the same from the claimants. However, it will be open for the Insurance Company to recover the amount from the owner of the vehicle.
..mitesh..
[K.S.JHAVERI,J.]