1.0 This appeal is directed against the judgment and award dated 09.04.2002 passed by learned Motor Accident Claims Tribunal (Main), Bhavnagar in Motor Accident Claim Petition No. 649 of 1996, wherein the Tribunal has awarded a sum of Rs.356000/ along with interest at the rate of 12% per annum from the date of application till realization.
2.0 According to the claimants, Manjibhai was travelling in three wheel tempo No. G.T. S. 9200 along with goods viz,, rice, bajra etc and was coming towards Patna. The Tempo was driven in a rash and negligent manner and in full speed by the driver. As a result of this the tempo turned turtle causing the death of Manjibhai. The heirs of the deceased, therefore, filed the aforesaid claim petition wherein the aforesaid award came to be passed which is challenged in the present appeal.
3.0 The contentions raised by learned Advocate for the appellant are that learned Tribunal erred in holding that the ratio laid down in the case of New India Assurance Company versus Satpal Singh and others reported in (2000) 1 SCC 237 was applicable to the facts of the instant case, and therefore, the appellant is liable to indemnify the insured against compensation payable to the claimants for the death of the deceased who was traveling as gratuitous passenger in the goods vehicle. He further submitted that the learned Tribunal failed to appreciate that the accident in the instant case had taken place on 24.08.1996 i.e. after amendment introduced in Section 147 of the Motor Vehicles Act, 1988 in 1994. Therefore, the ratio of Satpal Singh (supra) decided by the Hon'ble Supreme Court of India before the 1994 amendment in the Motor Vehicles Act, 1988 was not applicable. He further submitted that the panchnama did not support the story of the petitioners that deceased was carrying rice etc. with him.
4.0 Learned advocate for the appellant submitted that the appellant Insurance Company could not be held liable when there was clear violation of terms and conditions of policy. In support of his submission he placed reliance on the decision of the Hon'ble Supreme Court in case of National Insurance Company Ltd. versus Savitri Devi and others etc reported in 2012 (4) SCALE 111.
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 advocates for the parties and perused the documents on record.
7.0 It is found that accident has taken place on 24.08.1996 i.e after the amendment in the year 1994. Further, the vehicle involved in the accident was goods vehicle and the deceased was travelling as gratuitous passengers. Further, the panchnama does not support the story of the claimants that deceased was carrying rice etc. with him.
The risk of passenger travelling in the goods carriage was not covered under policy. Further, in view of the decision of the Hon'ble Supreme Court in case of National Insurance Company Ltd. versus Savitri Devi and others etc (supra), Insurance Company could not be held liable when there was clear violation of terms and conditions of policy.
8.0 For the foregoing reasons, the impugned judgement and award impugned in the appeal qua the Insurance Company is quashed and set aside. The amount lying in FDR shall be refunded to the Insurance Company. If any amount has already been paid by the Insurance Company the same shall not be permissible for it to recover from the claimants. It will be open to the Insurance Company to recover the said amount from the owner of the vehicle. If the amount is not withdrawn by the claimants, it will be open for them to recover the same from the owner of the vehicle. Appeal is allowed. The amount, if any, lying with the Registry of this Court, shall be transmitted to the concerned Tribunal. No order as to costs.
(K.S.JHAVERI, J.) niru*