1.0 The above appeals are directed against the judgement and award dated 06.12.2008 passed by the Motor Accident Claims Tribunal (Auxi), 3rd Fast Track Court, Panchmahals at Godhra in Motor Accident Claim Petitions No. 1126 of 1999, 1124 of 1999, 1127 of 1999, 912 of 1999, 913 of 1999 and , 1235 of 1999. All the appeals arose from one accident and therefore, the they are disposed of by this common judgement.
2.0 On 29.04.1999 the deceased and claimants were going to purchase grass for cattle from the Village Ketarbor to Village Bakariya in the Tempo bearing No. GJ.7.X. 8017. In the said tempo barat was being taken by the owner of the tempo. The tempo was driven in a rash and negligent manner and with an excessive speed and all of a sudden the tempo turned turtle due to excessive speed. As a result of this the persons travelling in the said tempo were thrown off on the road and two persons expired and others sustained injuries. Therefore the legal heirs of the deceased as well as injured claimants have preferred aforesaid claim petitions before the Tribunal wherein the aforesaid award came to be passed.
3.0 Learned advocate appearing for the appellant-Insurance Company mainly contended that the vehicle involved in the accident was goods vehicle and therefore the insurer would not be liable to pay compensation for the death of the deceased as well as claimants who were travelling in a goods vehicle and met with death of bodily injuries on account of an accident. He further submitted that the owner-insured himself was driving the vehicle - goods carriage vehicle at the time of accident.
4.0 Learned advocate for the appellant-Insurance company submitted that the barat was being taken in the said truck when the accident had taken place and claimants and deceased were travelling as passengers in the said truck. Thus, there is violation of the terms and conditions of the policy. Therefore, the insurance company is not liable to pay compensation.
5.0 Learned advocate for the appellant submitted that the appellant-Insurance Company could not be held liable when there was clear violation of terms and conditions of policy. In support of his submission he placed reliance on the decision of the Hon'ble Supreme Court in case of National Insurance Company Ltd. versus Savitri Devi and others etc reported in 2012 (4) SCALE 111.
6.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
7.0 Heard learned advocates for the parties and perused the documents on record.
8.0 According to the claimants, the deceased as well as claimants were going to purchase grass for cattle in the tempo. The insurance Company has examined the investigating officer of the police authority at Exh. 124 whereby the insurance company has proved that the claimants and deceased were members of the marriage party and all of them were travelling as passengers and at the time of accident there were more than 30 persons travelling as members of the marriage party. In my opinion, the Insurance Company could not be held liable when there was clear violation of terms and conditions of policy. This view is supported by the decision of the Hon'ble Supreme Court in case of National Insurance Company Ltd. versus Savitri Devi and others etc (supra) .
In view of the above the insurance company is not liable to pay the compensation to the claimants since the vehicle involved was goods vehicle and deceased and claimants were travelling as passengers in a goods vehicle.
9.0 For the foregoing reasons, the impugned judgement and award impugned in the appeal qua the Insurance Company is quashed and set aside. The amount lying in FDR shall be refunded to the Insurance Company with proportionate interest and cost. If the amount has already been paid by the Insurance Company the same shall not be permissible for it to recover from the claimants. It will be open to the Insurance Company to recover the said amount from the owner of the vehicle . If the amount is not withdrawn by the claimants, it will be open for them to recover the same from the owner of the vehicle. Appeal is allowed. The amount, if any, lying with the Registry of this Court, shall be transmitted to the concerned Tribunal. No order as to costs.
(K.S.JHAVERI, J.) niru* Top