1. This appeal has been preferred against the judgment and award dated 09.01.2003 passed by the Motor Accident Claims Tribunal (Aux.), Kutch at Bhuj in M.A.C.P. No.428/1994 whereby, the claim petition was allowed in part.
2. The aforesaid claim petition was preferred in connection with the vehicular accident that took place on 14.05.1994, involving a Jeep (Delivery Van) bearing registration No. GJ-2-T-8641, insured with the appellant- Insurance Company and in which Bhurasingh Madhuji Rajput had expired.
3. The main contention raised on behalf of the appellant-Insurance Company is that the vehicle in which the deceased was travelling at the relevant point of time, was a vehicle classified as 'goods vehicle' under the Motor Vehicles Act and therefore, the appellant-Insurance Company could not have been held liable to satisfy the claim in view of 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).
4. Heard learned counsel for the parties.
5. It appears from the record that the vehicle in which the deceased was travelling at the time of accident was a 'goods vehicle'. Under the provisions of the M.V. Act, the Insurance Company of a 'goods vehicle' cannot be fastened with the liability of making payment of compensation, if any injury is caused or death takes place while travelling in such vehicle when the person concerned is not the 'employee' of the owner of such vehicle. In the present case, the deceased was travelling as gratuitous passengers. Apart from that it also does not appear that the goods which were being carried at the relevant point of time could be classified as 'goods', as defined u/s.2(13) of the said Act. Considering the facts of the case and in view of the principle rendered in Asha Rani's case (supra), the appellant-Insurance Company cannot be saddled with the liability of making payment of compensation and hence, it is required to be exonerated from such liability.
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 make payment of compensation. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimant, then the same shall not be recovered from the original claimant but, shall be recovered from the owner of the offending vehicle and if the amount has not been withdrawn by the original claimant, then the same shall be refunded to the Insurance Company and the claimant shall be at liberty to recover the balance amount from the owner of the offending vehicle. Registry is directed to transmit the amount lying with this Court to the Tribunal concerned forthwith. The impugned award stands modified to the above extent. The appeal stands disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.]
Pravin/*