[1] These appeals arise out of the same vehicular accident and involve common questions on law and facts. Hence, they are disposed of by this common judgment.
[2] The aforesaid claim petitions were filed in connection with the vehicular accident that on 09.10.1997, while the claimants were travelling in Chhakda Rickshaw No.GJ-11-T-3790 as owner of goods with milk cans. The said vehicle was being driven by the opponent No.1. The driver of the vehicle lost control over his vehicle because of rash and negligent driving and excessive speed, as a result of which , the said vehicle went off the road and turned turtle. In the said accident, claimants sustained injuries and had filed claim petitions being M.A.C.P. No.559/1998 and 794/1992. The said claim petitions were allowed in part, by common judgment and award dated 29.06.2007, whereby, the claimants were awarded compensation in respective claim petitions.
[3] Learned advocate for the appellant submitted that on the date of accident as per the settled position of law gratuitous passengers, fare paying passenger or owner of the goods or care taker of the goods are not at all entitled to compensation from the Insurance Company under the contract of insurance and under the provisions of indemnity. She submitted that the tribunal ought to have exonerated the Insurance Company from the liability of satisfying the claim. She submitted that it was goods vehicle and passengers were travelling as unauthorised passengers in the Chhakda Rickshaw, the appellant is not liable to pay the compensation, after coming to this conclusion, the tribunal has committed an error directing the appellant to pay the amount of compensation and recover the same from the owner of the offending vehicle. She, therefore, urged that the appeals are required to be allowed and the order passed by the tribunal is required to be quashed and set aside.
[4] It is submitted on behalf of the appellant-Insurance Company that the Tribunal seriously erred in holding that the Insurance Company liable since the claimants were travelling as a gratuitous passengers in the rickshaw.
[5] Heard learned advocates for the respective parties. I have perused the evidence on record and considered the rival submissions, I am of the view that once it is concluded that the claimants were travelling in Chhakda Rickshaw, then the Insurance Company could not be made liable to satisfy the claim since the vehicle in question was a 'goods vehicle'. Hence, the Tribunal ought to have exonerated the Insurance Company from the liability of satisfying the claim and therefore, the present appeals are required to be allowed.
[6] For the foregoing reasons, the appeals are allowed. The impugned judgment and award passed by the Tribunal is quashed and set aside only qua the extent of imposition of liability upon the appellant-Insurance Company to satisfy the award. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants but, the appellant-Insurance Company shall be at liberty to recover the same from the owner of the offending vehicle. But, if the amount has not been withdrawn by the original claimants, the same shall be refunded to the Insurance Company and the claimants shall be at liberty to recover the balance amount from the owner of the offending vehicle. No order as to costs.
[ K. S. JHAVERI, J. ] vijay Top