1. By way of this appeal, the appellant has challenged the judgment and award of the M.A.C.T. (Auxi.), Mahesana, dated 26.02.2002, rendered in M.A.C.P. No. 1350 of 1990, whereby the tribunal awarded Rs.44,000/- along with 9 per cent interest.
2. Brief facts of the case are as under:
On account of a vehicular accident, which therefore, filed the aforesaid claim petition, wherein the tribunal passed the impugned judgment and award. Hence, the present appeal.
3. Learned Counsel for the appellant has raised various contentions. However, he mainly contended that the tribunal ought to have exonerated the appellant from the liability to pay compensation. In support of his submission, the learned Advocate for the appellant has placed reliance on a decision of the Apex Court in the matter of “Dhanraj Vs. New India Assurance Co. Ltd. And Anr.”, reported in AIR 2004 SC 4767, wherein the Apex Court has observed that the words “premium on vehicle and non-electrical accessories”, appearing under heading “own damage” under which premium was paid by insured, covers damage to vehicle and does not cover injury to person of owner, and therefore, inured cannot claim compensation from insurer in absence of personal accident insurance coverage.
4. On the other hand, learned Counsel for respondent Nos.1 and 3, who were the original claimant as well as original defendant No.2, has opposed the appeal and has prayed to dismiss the same as being without merit.
5. Heard, learned Counsel for the parties and perused the material on record.
6. From a perusal of the material on record it transpires that respondent No.1, the original claimant, met with the alleged accident caused by a car owned by him, when one of the wheels of the said car, which was being driven by his brother, was accidentally detached from his axis, as a result of which respondent No.1 was dashed and injured by the same. It is pertinent to note that brother of respondent No.1 was deleted from array of the parties before the tribunal itself, and thus, the only parties which remained before the tribunal were the appellant and respondent No.1, whose name appears in the claim petition as the claimant as well as defendant No.2. Thus, the contention of the learned Counsel for the appellant that in view of the decision of the Apex Court in “Dhanraj Vs. New India Assurance Co. Ltd. And Anr.”(Supra) and in view of the fact that the driver of the offending vehicle is already deleted and since the claimant himself is the owner of the offending vehicle, his risk was not covered under the terms of policy and the tribunal ought to have exonerated the appellant, requires to be accepted.
7. In the result, the appeal is ALLOWED. The judgment and award of the tribunal impugned in this appeal stands QUASHED and set aside qua the APPELLANT, only. The amount, if any, deposited by the appellant be REFUNDED to it along with interest, costs, if any. Respondent No.1, the original claimant, shall be entitled to recover the amount of compensation from the owner of the offending vehicle. No order as to costs.
(K.S. JHAVERI,J.) Umesh/