1. This appeal arise out of the judgment and award dated 29.01.1996 passed by the Motor Accident Claims Tribunal (Special), Porbandar in M.A.C.P. No. 18/1993 whereby, the claim petitions were partly allowed and the appellant-Insurance Company, along with other original opponents in each of the claim petitions, was held jointly and severally liable to make payment of compensation to the original claimants.
3. The above claim petitions came to be filed in connection with the vehicular accident that took place on 17.12.1992, involving the goods carrier rickshaw bearing registration No.GJ-10-T-704 insured with the appellant-Insurance Company.
4. The main contention raised on behalf of the appellant-Insurance Company is that though a specific contention was raised by the Insurance Company in its Written Statement filed before the Tribunal that the Insurance Company is not liable to make payment of compensation since the claimants were travelling as gratuitous passengers in a 'goods vehicle' and driver opponent No.1 had no valid driving licence, the Tribunal held the Insurance Company liable. In support of the above submission, reliance has been placed on the decision of the Apex Court in the case of New India Assurance Co. Ltd. v. Asha Rani and others, AIR 2003 S.C. 607 (1).
5. Per contra, it has been submitted by learned counsel for the respondent that the submission regarding liability of the Insurance Company was not raised before the Tribunal at the time of final hearing. He has drawn attention of the Court to the discussion made by the Tribunal in Para-8 of the impugned award.
6. Heard learned counsel for the respective parties. It is not in dispute that the vehicle in which the claimants were travelling was a 'goods vehicle'. However, so far as the issue regarding raising of the said contentions before the Tribunal is concerned, in Para-7 of the impugned award, the Tribunal has observed that "This is the most important issue which involves the defence by the Insurance Company to disclaim its liability on the ground that firstly the deceased travelled in goods vehicle and secondly, the driver opponent No.1 had no driving licence". Thus, it is clear from the award itself that the contention regarding liability of the Insurance Company and validity of the licence of the original opponent No.1 was raised before the Tribunal, which was also recorded by the Tribunal in the impugned award. Hence, it is clear that though a specific contentions were raised before the Tribunal, the Tribunal erred in ignoring the same. In view of the above and considering the principle laid down in Asha Rani's case (supra), the appellant-Insurance Company is required to be exonerated from the liability of making payment of compensation.
7. In the result, the impugned common judgment and award is quashed and set aside only qua the extent of imposition of liability upon the appellant-Insurance 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 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. The impugned award stands modified to the above extent. The appeals stand disposed of accordingly. No order as to costs.
[K.
S. JHAVERI, J.] ..mitesh..
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