1. By way of these appeals, the appellant-original opponent No.2 has challenged the judgment and award dated 30.04.2004, passed by the Motor Accident Claims Tribunal(Auxi.), Amreli, in M.A.C.P. No.32 of 2002, whereby the tribunal has awarded compensation in the sum of Rs. 1,19,200/- to the claimant with interest at the rate of 9% per annum from the date of filing of the petition till realization.
2. The brief facts leading to filing of this appeal are that on 02.012.2001, one Ibrahimbhai Daudbhai Kalva, respondent No.1 herein, was travelling in a goods Rickshaw bearing registration No. GJ-10-T.9785. The driver of the said Rickshaw lost control over his vehicle, therefore, the said vehicle dashed with one tree. As a result of the said accident, respondent No.1 sustained grievous injuries and therefore, he filed claim petition before the Tribunal for compensation. The Tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petition and passed the award as stated herein above against which the present appeal is filed by the appellant-Insurance Company.
3. Learned counsel for the appellant contended that the tribunal erred in passing the impugned judgment and award. He further contended that though the appellant-Insurance Company has exonerated but in operative part of the judgement has wrongly held that the Insurance Company is liable to pay compensation to the claimant and to recover the said amount from the owner of the vehicle. Therefore, he has prayed to allow the present appeals.
4. Learned counsel for the respondent supported the impugned judgement and award of the Tribunal and submitted that the Tribunal after considering the evidence on record has passed the impugned judgment and award. Therefore, he prayed to dismiss this appeal.
5. I have head learned counsel appearing for both the parties and perused the material on record. It is not in dispute that the vehicle in question in which the respondent No.1 was travelling was a 'goods vehicle'. The contention of learned counsel for the appellant is required to be accepted, as the Tribunal in his impugned judgement and award has observed that the applicant-respondent No.1 herein, was not travelling as owner of the goods. However, the Tribunal has wrongly held in operative part of the impugned judgement and award that the Appellant-Insurance is liable to pay compensation to the claimant. Once the Tribunal has observed that the respondent No.1 was not travelling as owner of the goods then there was no question of holding Appellant-Insurance Company liable to make payment of compensation and to recover the said amount from the owner of the vehicle.
6. For the foregoing reasons, the appeal is allowed. The impugned judgment and award is quashed and set aside only qua the extent of imposition of liability on the appellant-Insurance Company to make payment of compensation. It is, however, observed that if the original claimant has already withdrawn the amount of compensation, then the same shall not be recovered from the original claimant but, shall be recovered from the owner of the offending vehicle and if the amount is still lying with the Tribunal, then the same shall be refunded to the appellant-Insurance Company and in which case, the original claimants can recover the amount from the owner of the offending vehicle. The appeal stands disposed of accordingly. No order as to costs.
[K.
S. JHAVERI, J.] pawan Top