[1] This appeal is filed challenging the judgment and award dated 30.10.2004 passed by the Joint District Judge, Fast Track Court No.6, Ahmedabad (Rural) at Ahmedabad in Motor Accident Claim Petition No.1490 of 1992 whereby the Tribunal awarded an amount of Rs.19250/- with interest at the rate of 9% p.a from the date of petition till realization.
[2] The aforesaid claim petition was filed, in connection with the vehicular accident that took place on 08.05.1992. In the said accident, the claimant was travelling in a truck owned by opponent No.2 and at that time he was going towards Dhandhuka for selling fruit, he was travelling in the Cabin of Driver which was driven by the opponent No.1 with full speed. When they reached near Tagdi at that time one truck was coming from the opposite side and both trucks were dashed with each other. The said claim petition was allowed in part, whereby, the claimant was awarded compensation of Rs.19,250/- with interest at the rate of 9% p.a. from the date of petition till realization.
[3] Learned advocate for the appellant submitted that the truck in question is goods vehicle and the claimant was sitting in the vehicle as a gratuitous passenger or as a owner of goods and in view of the law laid down by the Hon'ble Supreme Court reported in (2004) 2 SCC1, (2003) 2 SCC 223 and (2003) 2 SCC 339, it is very clear that the passenger risk is not covered in such type of vehicle and without considering the submission, the tribunal erred in passing the decree against the appellant. It is submitted that no additional premium is paid by the insured to cover the risk of such type of passenger and even otherwise, the accident took place on 08.05.1992, so the risk of such passenger is not covered and it amount to breach of policy condition and permit also. It is admitted position that claimants were traveling in goods vehicle at the time of accident and therefore as stated above and in view of the judgment of the Apex Court in the case of New India Assurance Company Limited Vs. Asha Rani and others, reported in 2003 (1) ACJ 1, the appellant is not liable to pay any amount to claimants as the policy did not cover the risk of such person. He, therefore, urged that the appeals are required to be allowed and the impugned judgment and award of the Motor Accident Claims Tribunal is required to be quashed and set aside.
[4] It is submitted on behalf of the appellant-Insurance Company that the Tribunal seriously erred in holding the Insurance Company liable since the deceased was travelling as a gratuitous passenger in the truck, which is a vehicle classified as 'goods vehicle' under the Motor Vehicles Act.
[5] Heard learned advocates for the respective parties. I have perused the evidence on record and considered the rival submissions, I am of the view that once it is concluded that the claimant was travelling in matador, then the Insurance Company could not be made liable to satisfy the claim since the vehicle in question was a 'goods vehicle'. Hence, the Tribunal ought to have exonerated the Insurance Company from the liability of satisfying the claim and therefore, the present appeal is required to be allowed.
[6] For the foregoing reasons, the appeal is allowed. The impugned judgment and award passed by the Tribunal is quashed and set aside only qua the extent of imposition of liability upon the appellant- Insurance Company to satisfy the award. 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 but, the appellant-Insurance Company shall be at liberty to recover the same from the owner of the offending vehicle. But, if the amount has not been withdrawn by the original claimants, the same shall be refunded to the Insurance Company and the claimants shall be at liberty to recover the balance amount from the owner of the offending vehicle. The amount is lying before this Court, the same is transmitted to the Tribunal No order as to costs.
[ K. S. JHAVERI, J. ] vijay