1.0 The above appeals are directed against the judgement and award dated 11.04.2005 passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad in Motor Accident Claim Petitions No. 835 of 1990, 817 of 1990, 833 of 1990, 854 of 1990 and 1247 of 1990. All the appeals arose from one accident and therefore, the they are disposed of by this common judgement .
2.0 On 02.01.1990 the claimants and Kankuben Chandrasingh and Jagdishkumar had boarded in truck No. GQG 6750 along with their respective goods. The said truck was proceeding on PansoraVansoi road. At about 6.45 p.m, the driver of the truck lost control of the truck due to rash and negligent driving and dashed with the tree on road side due to which the claimants sustained grievous injuries on their persons along with the deceased Kankuben of M.A.C.P. No. 854 of 1990 and the deceased Jagdishkumar of M.A.C.P.No. 1247 of 1990. The legal heirs of the deceased and claimants preferred aforesaid claim petitions before the Tribunal wherein the aforesaid award came to be passed which is challenged in the present appeals.
3.0 Learned advocate appearing for the appellantInsurance Company mainly contended that the vehicle involved in the accident was goods carrier and therefore the insurer would not be liable to pay compensation for the death of the deceased as well as claimants who were travelling in a goods vehicle and met with death of bodily injuries on account of an accident. He further submitted that the truck in question was used for carrying passengers for hire or reward. Therefore, there is clear breach of terms and conditions of the policy and therefore, the insurance company is not liable to indemnify the claim of the third party. In support of his contention he placed reliance on the decision of the Hon’ble Apex Court in case of New India Assurance Co. Ltd versus Asha Rani and other reported in (2003) 2 Supreme Court Cases 223.
5.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
6.0 Heard learned advocate for the respective parties and perused the documents on record. The question arising in the present appeals is whether the insurer is liable to pay compensation to the heirs of the deceased as well as the claimants who were travelling as passengers in goods vehicle and thereby there is breach of policy. Further, the permit Exh. 85 was issued by RTO and the same was registered in RTO vide Exh. 84. The insurance company had insured the vehicle in question as the goods vehicle and from the evidence on record it transpires that the truck in question was used for carrying passengers for hire or reward. Therefore, there was breach of terms of the policy. This view is supported by the decision in the case of New India Assurance Co. Ltd versus Asha Rani and other (supra).
7.0 In view of the above the insurance company is not liable to pay the compensation to the claimants since the vehicle involved was goods vehicle and deceased and claimants were travelling as passengers in a goods vehicle.
8.0 For the foregoing reasons, the appeals are allowed. The impugned judgment and award passed by the Tribunal is quashed qua the extent of imposition of liability on the appellantInsurance Company to make payment of compensation. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants and the Insurance Company shall be at liberty to recover the same from the owner of the vehicle. If the amount is not withdrawn by the original claimants, it will be open to them to recover the same from the owner of the vehicle. No order as to costs.
(K.S.JHAVERI, J.) niru*