1. Since, this group of appeals arise out of a common accident, they are heard together and disposed of by this common judgment, today.
2. By way of these appeals, the appellant, original respondent No.3, has challenged the judgment and award of the M.A.C.T.(Auxi.), Bharuch, dated 24.10.2001, rendered in different claim petitions, whereby the tribunal passed the awards impugned in respective appeals.
3. The brief facts leading to the filing of the present appeals are that on account of a vehicular accident, which took place on 06.10.1989, when the driver of the offending vehicle i.e. tempo lost the control over it and it went turtle. As a result thereof, one Parshottambhai lost his life and other persons received injuries. Hence, the heirs and legal representatives of the deceased and the injured persons preferred different claim petitions claiming compensation, wherein the tribunal passed the impugned judgment and award. Hence, the present appeal.
4. The learned Counsel for the appellant has raised various contentions. He submitted that the tribunal erred in passing the impugned judgment and award. The tribunal failed to appreciate the material on record in its true perspective. The amount awarded by the tribunal is highly exaggerated. He lastly contended that in view of the fact that the deceased and the injured claimants were travelling in a goods vehicle, the tribunal ought to have exonerated the appellant- insurance company from the liability to pay compensation. He has, therefore, prayed to allow the present appeal.
In support of his contentions, he has placed reliance on a full bench decision of the Apex Court in “NEW INDIA ASSURANCE CO. LTD. VS. ASHA RANI & ORS.”, reported in (2003) 2 SCC 223.
5. On the other hand, learned Counsel for the respondents have opposed the appeal and have prayed to dismiss the same, as being without merit.
The learned Counsel for the original claimants have placed reliance on a decision of the Apex Court in the case of “UNITED INDIA INSURANCE CO.LTD. VS. K.M. POONAM”, reported in 2011(0)GLHEL-SC 49428.
6. Heard learned Counsel for the parties and perused the material on record.
7. As regards the contention raised by the learned Counsel for the appellant with regard to the factum of accident is concerned, the tribunal has elaborately discussed the evidence on record, more particularly, the evidence in the form of FIR(Exhibit-91) and Panchnama(Exhibit-92), which support the case put forward by the original claimants. I have also gone through the impugned order and I find that the compensation awarded by the tribunal is just and proper and in consonance with the evidence on record and the law on the subject, and hence, the contentions of the learned Counsel for the appellant with regard to factum of accident and quantum requires rejection.
8. Insofar as the contention raised by the learned Counsel for the appellant with regard to its exoneration is concerned, it is an admitted position that the deceased and the injured claimants were travelling in the tempo which is a goods vehicle. In other words, the said vehicle is not meant to carry passengers for hire or reward. From the material on record, it is, further, revealed that more than 30 to 40 persons were travelling in the said tempo, at the time of accident, in clear breach of conditions of insurance policy.
9. The full bench of the Apex Court, consisting the then Chief Justice of India, has taken a view that when the owner of the goods or his authorized representative travelling in a goods vehicle, sustains injury or expires, insurer would not be liable to pay compensation. The ratio laid down in the said judgment holds the ground till date. I am, therefore, inclined to go with the same. Hence, the judgment relied on by the learned Counsel for the original claimants in the case of “UNITED INDIA INSURANCE CO.LTD. VS. K.M.
POONAM”(Supra) will not be of any assistance to the original claimants.
10. In the result, all the appeals are PARTLY ALLOWED. The judgment and award impugned in these appeals is QUASHED and set aside QUA the appellant-insurance company. The appellant insurance company shall be REFUNDED the amount invested by the tribunal in FDRs along with interest, costs, if any, if the same is NOT WITHDRAWN by the original claimants. If the amount has, already, been WITHDRAWN by the original claimants, the same shall NOT be RECOVERED from the claimants, but, it shall be open to the appellant to recover the same from the OWNER of the offending vehicle. If, the amounts are NOT withdrawn by the original claimants, it shall be open to them to RECOVER the same from the owner of the offending vehicle. No order as to costs.
(K.S. JHAVERI,J.) Umesh/