1. By way of this appeal under Section 110-D of the Motor Vehicles Act, 1939, the original opponent no.3 – present appellant has challenged the judgement and decree dated 20.10.1995 passed by the Motor Accident Claims Tribunal, (Main), Bhavnagar in M.A.C.P No. 37 of 1987 whereby the Tribunal directed the original opponents to jointly and severally pay a compensation of Rs. 2,00,000/- with interest at the rate of 15% per annum.
2. The original applicants-present respondents no.1 to 6 had filed a claim petition seeking compensation for Rs. 2,00,000/- for the death of one Shri Jayrajsinh Vajubhai Sarvariya during the motor vehicular accident which had occurred on 13.10.1986 on Palitana road while the deceased was travelling in a delivery rickshaw (chhakada) bearing no. GTS 7696 alongwith a bag of oil cakes by paying fare. The auto which belonged to original opponent nos. 2 was being driven by original opponent no.1 at an excessive speed. Due to such rash and negligent driving, the auto turned upside down and Shri Jayrajsinh. As a result of the said accident, he died. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr Vibhuti Nanavati, learned advocate for the appellant has contended that the present appellant ought to have been held not liable to pay the compensation amount as the delivery rickshaw whose carrying capacity is less than 900 k.g canot carry any passenger. He has further contended that the Tribunal failed to appreciate that there was a breach of terms of the policy as four passengers were travelling in the rickshaw.
3.1 Mr Nanavati has placed reliance on a decision of the Apex Court in the case of Mallawwa and others v Oriental Insurance Co. Ltd. and others reported in 1999 ACJ 1 in order to substantiate his contentions.
4. Heard learned counsel for the parties. I have gone through the averments made in the appeal and documents placed on record including the award of the Tribunal. From the perusal of the award, it is clear that the present appellant had strongly contended before the Tribunal that the auto bearing no. GTS 7696 was a goods vehicle and under the terms and conditions of the policy it was to be used only under a private carrier permit and that the policy does not cover the risk for the use of the auto for the conveyance of passenger for hire or reward. The present appellant had further contended that they would not be liable to satisfy any award as four passengers were travelling in the vehicle which was not meant for carrying of passengers but was a delivery van (Chhakada).
4.1 A perusal of the decisions relied on by the learned counsel for the appellant is relevant at this stage. In the case of Mallawa and others(supra) the Apex Court has held that the insurance company is not liable for death or injuries sustained by persons carried in a goods vehicle either along with their goods or after paying fare or gratuitously.
5. As a result of hearing and perusal of records and in view of the decision of the Apex Court, I am of the opinion that the contentions raised by the appellant is required to be accepted. The fact that the vehicle in question was a goods vehicle cannot be disputed and therefore the appellant cannot be held liable to undertake third party risk in a case where the vehicle is used for a purpose other than the one for which the policy is covered. In that view of the matter, the award of the Tribunal is required to be modified by not holding the present appellant liable for the compensation payable to the present respondents no.1 to 6.
6. In the premises aforesaid, the appeal is allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance company-present appellant. The amount of award deposited by the insurance company shall be refunded. However, if the amount is withdrawn by the original claimants, the same shall not be recovered. It will be open for the insurance company to recover the same from the owner and if the amount is not paid to the claimant it will be open for them 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//