1.0 This appeal is directed against the judgement and award dated 13.04.1998 passed by the Motor Accident Claims Tribunal (Main), Ahmedabad( Rural) in Motor Accident Claim Petition No. 2015 of 1990 whereby the learned Tribunal has allowed the claim petition by awarding compensation in the sum of Rs. 150000/ with interest at the rate of 12% per annum from the date of petition till realization. 3.0 On 15.12.1989 at about 5. 00. a.m. Lalji Khimji was travelling in a public carrier bearing registration No. GTS 6004. The public carrier met with an accident between Pipli and Boru on BhavnagarTarapur road on account of rash and negligent deriving of its driver. As a result of which, the public carrier fell into a ditch and therefore, Lalji Khimji received serious injuries and he died on the spot. The legal heirs of the deceased, therefore, filed the aforesaid claim petition before the Tribunal wherein the aforesaid award came to be passed which is challenged in the present appeal.
4.0 Learned advocate appearing for the appellantInsurance Company mainly contended that the vehicle involved in the accident was goods vehicle and therefore the insurer would not be liable to pay compensation for the death or bodily injuries on account of an accident. In support of his submission, he placed reliance on the decision 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 Heard learned advocate for the appellant and perused the documents on record. The question arising in the present appeal is whether the insurer is liable to pay compensation since the deceased was travelling as gratuitous passenger in goods vehicle and thereby there is breach of policy. Further, in the case of New India Assurance Company Limited Vs Asha Rani and others, reported in 2002(2) GLR 1001 (=AIR 2003(1) SC p 607 the Apex Court has clearly held that insurer of the goods vehicle will not be liable to pay compensation in respect of death or bodily injury to passengers carried in a goods vehicle. Therefore there was breach of terms of the policy by the owner of the vehicle. This view is supported by the decision in the case of New India Assurance Co. Ltd versus Asha Rani and other (supra).
6.0 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 was travelling as gratuitous passengers in a goods vehicle.
7.0 For the foregoing reasons, the appeal is 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. The amount if any is lying with this Court shall be transmitted to the concerned Tribunal. No order as to costs.
(K.S.JHAVERI, J.) niru*