1. This appeal has been preferred against the judgment and award dated 30.04.1999 passed by the Motor Accident Claims Tribunal, Panchmahals in M.A.C.P. No.494/1988 whereby, the claim petition was allowed and respondents no.1 to 4 herein, original claimants, were awarded total compensation of Rs.3.00 lacs along with interest at the rate of 15% per annum from the date of application till its realization with proportionate costs.
2. The aforesaid claim petition came to be filed in connection with the vehicular accident that occurred on 16.04.1988 on the Godhra – Dahod road involving the goods vehicle (Tempo) bearing registration No. GRY 4426 in which Balsing Gamjibhai Patel. Against the impugned award, the present appeal has been preferred.
3. It has been contended on behalf of the appellant that the deceased was travelling in a 'good vehicle' at the time of accident and therefore, the appellant- Insurance Company ought not to have been made liable to satisfy the award in view of the decision of the Apex Court in the case of Smt. Mallawwa v. Oriental Insurance Company Ltd. and others, AIR 1999 SC 489.
4. Heard learned counsel for the parties. Though served, none appears on behalf of respondents no.5 & 6. It is not in dispute that the vehicle in question in which the deceased was travelling at the time of accident was a vehicle classified as 'goods vehicle' under the provisions of the M. V. Act. Under the circumstances, the appellant-Insurance Company could not have been held liable in view of the principle laid down by the Apex Court in Mallawwa's case (supra). Hence, the appeal deserves to be allowed.
5. For the foregoing reasons, the appeal is allowed. The impugned judgment and award passed by the Tribunal is quashed and set aside only qua the extent of imposition of liability on the appellant-Insurance Company to make payment of compensation. The rest of the impugned award remains unaltered. It is, however, observed that if the original claimants have already withdrawn the amount of compensation, then the same shall not be recovered from the original claimants but, shall be recovered from the owner of the offending vehicle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.] Pravin/*