1.0 This appeal is directed against the judgement and award dated 30.01.1996 passed by the Motor Accident Claims Tribunal (AuxIII), Junagadh in Motor Accident Claim Petition No. 387 of 1988 whereby the Tribunal has awarded Rs. 54000/ as compensation to the original claimants with interest at the rate of 15% per annum from the date of application. 2..0 The original claimant had filed a claim petition seeking compensation for Rs. 1, 00,000/ for the injuries received by him during the motor vehicular accident which had occurred on 22.06.1988 at the road of Hirakot to Prabhas Patan while travelling in a rickshaw. The Tribunal after hearing the parties passed the aforesaid award which is challenged in the present appeal.
3.0 Learned advocate appearing for the appellant contended that the Tribunal failed to appreciate the fact that under the policy issued by the appellant in respect of the rickshaw in question, the said vehicle was insured as Goods vehicle and the claimant was travelling on hire and reward and therefore, there is breach of the conditions and the insurance company would not be liable. He 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 AIR 1999 SC 589.
4.0 Learned advocate appearing for the respondent supported the award of the Tribunal and submitted that no interference may be caused.
5.0 Heard learned advocates 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 insurance company produced the registered entry of R.T.O at Exh. 35 and the conditions of the policies from Exh. 46 and 39 show that the present vehicle was insured as Goods vehicle and the person that is claimant was travelling on hire and reward and therefore there is breach of the conditions and the Insurance Company should not be held liable.
6.0 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.
7.0 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 original claimant.
8.0 In the premises aforesaid, the appeal is allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance companypresent appellant. The amount 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.) niru*