1. By way of this appeal, the appellant has challenged the judgement and award dated 30.04.1999 passed by the Motor Accident Claims Tribunal (Aux) at Bharuch in MACP No. 865 of 1991 whereby the Tribunal awarded an amount of Rs. 2,72,000/- along with interest at the rate of 12% per annum.
2. The original claimant had filed claim petition seeking compensation to the tune of Rs. 4,00,000/- in respect of the death of Shri Ramanlal Jadav in a vehicular accident which occurred on 24.02.1991 when he was travelling in a jeep bearing No. GAA - 8133. It is the case of the claimants that while the vehicle reached Hotel Garden, a tempo bearing registration no. GJ-7-T- 7391 came from the opposite direction in a rash and negligent manner and dashed with the jeep. Shri Ramanlal Jadav sustained serious injuries and succumbed to the same. Under the said circumstances, the claimants therefore filed claim petition. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Nanavati, learned counsel for the appellant has contended that the Tribunal ought to have exonerated the Insurance Company and ought to have dismissed the claim of the claimants against the insurance company and that the Tribunal ought not to have held that the driver, owner and the insurance company are jointly and severally liable to pay compensation to the claimants.
3.1 Mr. Nanavati further submitted that the deceased cannot be termed as third party and considering the policy on record which is an Act policy, the Tribunal ought not to have held the insurance company liable for the compensation. He has relied upon the decision of the Apex Court in the case of Bhagyalakshmi and Others vs. United Insurance Company Limited and another reported in 2009(7) SCC 148 wherein the question pertaining to “Act only” policy was considered. He has also relied upon in the case of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Another reported in AIR 1987 SC 1690.
4. Learned counsel for the respondent has supported the award of the Tribunal and submitted that the Tribunal has passed the award in accordance with law after considering the facts and circumstances of the case and therefore no interference is called for in the matter.
5. This court has heard the parties and perused the papers on record. The only contention raised by the learned advocate for the appellant is that the insurance company is required to be exonerated. The question involved in the present petition is as regards the liability of death of a person travelling in a private car. The said issue is squarely covered by the decision of the Apex Court in the case of Bhagyalakshmi (supra) wherein the Apex Court while referring the matter to a larger bench qua comprehensive policy has held that in the case of Act policy a passenger would not be a third party within the meaning of the provisions of the 1988 Act.
5.1 Considering the facts and circumstances of the present case, this Court is of the view that the insurance company was required to be exonerated by the Tribunal. The policy on record excluded the liability of the insurance company vide clause 3 of General Exception wherein it is mentioned that the company shall not be liable in respect of death arising out of and in the course of employment of a person in the employment of the insured or in the employment of any person who is indemnified under this policy or bodily injury sustained by such person arising out of and in the course of such employment. The policy is an Act policy and considering the fact that the passenger therein cannot be construed as a third party, the insurance company cannot be held liable for compensation.
6. In the premises aforesaid, appeal is allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance company-present appellant. The amount deposited by the insurance company-appellant shall be refunded. If the amount has been withdrawn by the claimants, it shall be open to the insurance company to recover the same from the owner. If the amount is not withdrawn by the claimants, it shall be open to the claimants to recover the same from the owner. The award of the Tribunal is modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//