1. By way of these appeals under Section 173 of the Motor Vehicles Act, 1939, the appellants have challenged the common judgement and award dated 23.11.2005 passed by the Motor Accident Claims Tribunal (Aux), Rajkot in M.A.C.P Nos. 579 & 580 of 2000 whereby the Tribunal directed the original opponents to jointly pay compensation with interest and proportionate costs.
2. 2 Claim petitions arose out of the same accident which occurred on 14.02.2000. The injured persons were travelling in a Chhakda rickshaw bearing registration no. GJ-13T-7268 being driven by the original opponent no. 1 in a rash and negligent manner as a result of which the rickshaw turned turtle. The original applicants had filed claim petitions seeking compensation. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr Vibhuti Nanavati, learned advocate appearing for the appellant has contended that the present appellant ought to have been held not liable to pay the compensation amount as there is a specific condition in the policy not to use the vehicle for hire or reward. He has further contended that the Tribunal failed to appreciate that the passengers carried in a goods vehicle can by no stretch of imagination be construed as third party.
3.1 Mr Nanavati has placed reliance on the decisions of the Apex Court in order to substantiate his contentions. He has relied upon the decision in the case of National Insurance Company Ltd. Vs. Choleti Bharatamma and Others reported in 2008(1) SCC 423 and General Manager, United Insurance Co. Ltd. Vs. M. Laxmi and Others reported in AIR 2009 SC 626.
4. Heard learned counsel for the appellant. 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 it is absolved from the liability of paying compensation in view of the fact that the insured had committed breach of the terms of the policy as also the provisions of the M.V. Act by carrying passengers on payment of hire or reward in the goods vehicle.
4.1 A perusal of the decision relied on by the learned counsel for the appellant is relevant at this stage. The Apex Court has in many cases taken the view that as the provisions of the M.V. Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefore.
4.2 In the case of National Insurance Co. Ltd. (supra) the Apex Court has held that it is necessary to show that the deceased was travelling in the vehicle along with the driver or the cleaner as the owner of the goods and that travelling with the goods itself does not entitle anyone to protection under Section 147. It is also held therein that the owner of the goods means only the person who travels in the cabin of the vehicle.
4.3 In the case of General Manager, United Insurance Co. (supra), the Apex Court has held that the insurance company shall not be liable to ay compensation for gratuitous passengers.
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.
5.1 The claimants in the present case were not in a position to bring on record or prove what sort of articles was being carried with them and hence there was a breach of the terms and conditions of the policy as well as provisions of the Motor Vehicles Act which entitles the insurance company to be absolved from the liability. The claimants were travelling as gratuitous passengers in a goods vehicle. In that view of the matter, considering the aforesaid decisions of the Apex Court which are squarely applicable to the present case, 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 claim.
6. 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 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 claimants it will be open for the claimants to recover the same from the owner. The award of the Tribunal impugned in these appeals is modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//