1. The original opponent no. 3 – present appellant has challenged the judgement and award dated 08.11.2001 & 30.10.2001 passed by the Motor Accident Claims Tribunal No. III, Ahmedabad in M.A.C.P No. 389 & 435 of 1989 whereby the Tribunal directed the original opponents to jointly and severally pay a compensation of Rs. 47,500/- & Rs. 200000/- respectively with interest at the rate of 9% per annum and proportionate costs.
2. The original applicants of both the claim petitions had filed claim petitions seeking compensation for the accidental injuries sustained by them in a motor vehicular accident which had occurred on 01.05.1989 while travelling with goods in a Matador bearing no. GRU 4283. The matador which belonged to original opponent no. 2 was being driven by original opponent no.1 at an excessive speed. Due to such rash and negligent driving, the matador turned turtle and the original applicants along with other passengers were thrown out. As a result of the said accident, they sustained various injuries. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. K.K. Nair, learned advocate for the appellant has contended that the present appellant ought to have been held not liable to pay the compensation amount as there is a specific condition in the policy not to use the vehicle for hire or reward. He has further contended that the Tribunal failed to appreciate that the present case was covered by the Motor Vehicles Act, 1939 (prior to its amendment) and the provisions did not permit carrying of passengers for hire or reward in the goods vehicle.
3.1 Mr. Nair submitted that the Tribunal failed to appreciate the scope of a “Private Carrier's permit” which prohibits carriage of public goods as well as passengers. He has placed reliance on a decision of the Apex Court in the case of Mallawwa and others v Oriental Insurance Co. Ltd. and others reported in 1999 ACJ 1 in order to substantiate his contentions .
4. Mr. Mehul S. Shah, learned advocate appearing for the respondent -claimants supported the award passed by the Tribunal and submitted that there is nothing on record to show that the vehicle was a goods vehicle. He has relied upon a decision of this Court passed in First Appeal No. 1233 of 2005 on 20.03.2006.
5. Heard learned counsel for the parties. I have gone through the averments made in the appeal and documents placed on record including the award of the Tribunal and the insurance policy. From the perusal of the award, it is clear that the present appellant had strongly contended before the Tribunal that the matador bearing no. GRU 4283 was a goods vehicle and under the terms and conditions of the policy it was to be used only under a private carrier permit and that the policy does not cover the risk for the use of the truck for the conveyance of passenger for hire or reward.
6. A perusal of the decisions relied on by the learned counsel for the appellant is relevant at this stage. In the case of Mallawa and others(supra), the Apex Court has held that the insurance company is not liable for death or injuries sustained by persons carried in a goods vehicle either along with their goods or after paying fare or gratuitously. The Apex Court therein has observed that insurance company is not liable in case of death of owner of goods carried in a goods vehicle. For the purposes of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers have carried if the vehicle was of that class. Keeping in mind the classification of vehicles, by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions of that vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to S. 95(1)(b), 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 be a vehicle in which passengers are carried for hire or reward.
7. As a result of hearing and perusal of records and in view of the decisions of the Apex Court, I am of the opinion that the contentions raised by the appellant is required to be accepted. The fact that the vehicle in question was a goods vehicle is clear from the policy on record wherein it is mentioned that the vehicle is to be used only as a public carrier permit within the meaning of the Motor Vehicles Act, 1939 and that the policy does not cover the use for organised racing pace- making reliability trial or speed testing and also does not cover the use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanic propelled vehicle and also does not cover the use for carrying passengers in the vehicle except employees (other than the drive) not exceeding six in number under the purview of ht W.C. Act, 1923. Therefore the appellant cannot be held liable to undertake third party risk in a case where the vehicle is used for a purpose other than the one for which the policy is covered. The decision relied upon by learned advocate for the original claimants shall not be applicable on the facts of the present case. In that view of the matter, the awards of the Tribunal are required to be modified by not holding the present appellant liable for the compensation payable to the original claimants.
8. In the premises aforesaid, the appeals are allowed. The following order is passed in the interest of justice:
(I) The awards of the Tribunal are quashed and set aside qua liability of the insurance company-present appellant. (II)The amount of award deposited by the insurance company in each claim petition shall remain with the Tribunal for a period of 18 (eighteen) months from today. (III)The original claimants shall file execution proceedings against the owner of the vehicle within a period of there months from today.
(IV) The Tribunal shall hear and decide the execution proceedings within a period of one year from the date of filing of the execution proceedings by the original claimants.
(V) It is clarified that pending such execution proceedings the insurance company shall not be allowed to withdraw the amount deposited.
(VI) However, the insurance company shall be at liberty to withdraw the amount after expiry of the period of 18 months.
(VII) It is also clarified that the aforesaid arrangement is made/shall be applicable to award under section 173 of Motor Vehicle Act, 1988.
9. The awards of the Tribunal are modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//