1.0 This appeal is directed against the judgement and award dated 28.03.2005 passed by learned Motor accident Claims Tribunal (Main), Nadiad in Motor Accident Claim Petition No.318 of 1993 whereby the Tribunal has awarded a sum of Rs.98745/ along with interest at the rate of 9% per annum from the date of the claim petition till the amount is deposited in the Tribunal.
2.0 It is the case of the claimant that on 01.11.1992 he was going from Khambhat to Baroda in Ambassador Car bearing No.GBQ2005. When the said car reached near village Vagmara of Borsad Taluka, one truck came from the opposite direction with full light, due to which the driver of the ambassador car lost control of his car and the car turned turtle and went into a ditch. The claimant sustained serious injuries and had to take prolonged treatment. He therefore filed the aforesaid claim petition wherein the aforesaid award came to be passed.
3.0 Learned Advocate for the appellant submitted that the Tribunal failed to appreciate that the risk of fare paying passengers traveling in a private vehicle is neither required to be statutorily covered under the Motor Vehicles Act, nor covered by the policy at Exh.62 issued by the appellant company. He submitted that the Tribunal did not consider the endorsement regarding limitations as to use of the vehicle contained in the said policy which specifically did not cover the use of the vehicle for hire or reward. According to him the claimant admitted that he was traveling by paying fare in the vehicle which constituted a breach of the terms and conditions of the policy.
4.0 Learned Advocate for the respondent supported the jdugement and award and submitted that no interference may be caused.
5.0 Heard learned advocate for the respective parties and perused the documents on record. The only question to be decided in this appeal is whether it was a private vehicle not meant for hire or reward. In this connection it is required to be noted that the insurance policy is produced at Exh.62 which covers the period of accident. As per the policy it was a private vehicle not meant for hire or reward. The Tribunal has also observed that there is reference about the private vehicle with condition that the same cannot be used for hire or reward. There is an endorsement regarding limitations as to use of the vehicle and the policy did not cover use of the vehicle for hire or reward. Further the claimant had unequivocally admitted that he was traveling by paying fare in the vehicle. His deposition is at Exh.35. This constituted breach of the terms and conditions of the policy. Thus, when a person travelling in a private vehicle by paying fare, he is not a third party and therefore the risk of such passenger is not required to be covered. It appears that the Tribunal has ignored this fact by observing that the Insurance Company has not examined the driver nor the Investigating Officer to prove the correctness of averments of FIR. In the present case the policy itself is produced and there is statement of the claimant also showing that he was travelling by paying fare. Therefore the Tribunal was in error in saddling the liability on the appellant.
6.0 In the premises aforesaid the judgement and award of the Tribunal is quashed and set aside qua the appellant. The amount, if deposited by the Insurance Company shall be refunded. In case the amount is withdrawn by the claimant, it will be open to the insurance company to recover the amount from the owner of the vehicle. Appeal is allowed accordingly with no order as to costs.
niru* (K.S.JHAVERI, J.)