[1] These appeals arise out of the same vehicular accident and involve common questions on law and facts. Hence, they are disposed of by this common judgment.
[2] In connection with the vehicular accident that took place on 01.05.1992. In the said accident, the applicants and deceased persons were travelling in Matador No.GJ-1-U-6386 and due to rash and negligent driving Metador turned turtle and claimants have sustained injuries, had the claim petitions before the Motor Accident Claims Tribunal (A-III), Ahmedabad (Rural) at Ahmedabad u/s.166 of the Motor Vehicles Act. The said claim petitions were allowed in part, by common judgment and award dated 31.03.2005, whereby, the claimants were awarded compensation in respective claim petitions.
[3] Learned advocate for the appellant submitted that the matador in question is goods vehicle and the claimant was sitting in the capacity 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. 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 1.5.1992, so the risk of such passenger is not covered and it amount to breach of policy condition and permit also. It is submitted that when the accident has taken place risk of persons other than employee of insured were not statutorily covered under the policy and so, there is no liability of insurance company to cover the risk of persons traveling in goods vehicle. It is admitted position that claimants were traveling in goods vehicle at the time of accident and 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 claimants were travelling as a gratuitous passengers in the matador, 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 claimants were 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 appeals are required to be allowed.
[6] For the foregoing reasons, the appeals are 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