1. Being aggrieved and dissatisfied with the award dated 15.03.2005 passed by the Motor Accident Claims Tribunal Bharuch in Motor Accident Claims Petition No. 872, 873, 874, 875, 876 of 2002, the present appeals are preferred.
2. The present claim petitions were filed seeking compensation on account of the vehicular accident which occurred on 04.09.2002 when 15-20 persons were returning from an after-obsequies ceremony in a tempo. The tempo which was driven in a rash and negligent manner turned turtle as a result of which certain passengers expired and certain sustained injuries. The Tribunal after hearing the parties directed the insurance company to pay compensation to the claimants and thereafter recover the same from the owner.
3. Ms. Fozdar, learned advocate appearing for Ms. Jani for the appellant has submitted that the Tribunal erred in directing that the appellant first pay the amount and then recover it from the insured. She submitted that the Apex Court in clear terms has held that once it is established that there is no liability of the insurance company under the Act the claimant has to recover the amount from insured.
4. Having heard learned advocates for the parties and having perused the papers on record, this Court is of the view that the contention of learned advocate for the appellant is required to be accepted. It is an admitted position that the claimants were travelling in a goods vehicle at the time of accident and therefore in view of the decision of the Apex Court in the case of New India Assurance Co. Ltd v Asharani reported in 2003(2) SCC 223, the insurance company cannot be held liable. Accordingly, the award of the Tribunal is required to be modified by not holding the present appellant liable for the compensation payable to the original claimants. The Tribunal has committed an error in not exonerating the insurance company from the claims.
5. In the premises aforesaid, the appeals are allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance company-present appellant. The amount, if deposited, by the insurance company shall be refunded along with proportionate interest at 9%. However, if the amount is withdrawn by the original claimants, the same shall not be recovered.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 of the tempo and if the amount is not paid to the claimant it will be open for the claimants to recover the same from the owner of the tempo. The award of the Tribunal impugned is modified accordingly.
(K.S. JHAVERI, J.) Divya//