1. This appeal has been preferred against the judgment and award dated 08.02.1999 passed by the Motor Accident Claims Tribunal [Main] Banaskantha at Palanpur in M.A.C.P. No. 633 of 1992, whereby the claim petition was partly allowed and the original claimants were entitled to recover an amount of Rs.1,74,000/- from all the opponents jointly and severally along with proportionate costs and interest @ 15% per annum from the date of the application till its realization.
2. The facts in brief are that on 31.10.1992, while Ganaji Vadhaji was travelling in a jeep bearing no. GJ-8T-4535 along with his goods, at a particular place, on account of rash and negligent driving by respondent no. 5, the jeep turned turtle, as a result of which, Ganaji sustained severe bodily injuries and during the course of treatment he died. The legal heirs of the deceased, original claimants filed claim petition, which came to be partly allowed, by way of the impugned award. Against the said award, the appellant Insurance Company has preferred this appeal.
3. The main contention raised on behalf of the appellant Insurance Company is that though the vehicle in question in which the deceased was travelling was a goods vehicle, the Tribunal erred in holding the Insurance Company liable to satisfy the claim. It has been submitted that the findings arrived at by the Tribunal while deciding the application under Section 166 of the Motor Vehicles Act is erroneous and contrary to the findings on record and hence, it deserves to be quashed and set aside.
4. On the other hand, the learned counsel for the respondents supported the impugned award and submitted that the claimant was travelling in the capacity of owner of the goods and therefore, the Tribunal was completely justified in holding the Insurance Company liable.
5. Heard learned counsel for the respective parties and perused the documents on record. It appears from the claim petition was filed before the Tribunal, more particularly, in para 9 therein, that the deceased was travelling in the jeep in question along with his goods. It also appears from the interim application filed under Section 140 of the Motor Vehicles Act, wherein also, the Tribunal has discussed in detail about the manner in which the accident had occurred. In the said award dated 19.09.1994, it has been recorded by the Tribunal that the deceased was travelling in the jeep in question along with his goods. Here, it is required to be noted that the said award which came to passed under Section 140 of the Motor Vehicles Act has not been challenged by either party and therefore, the same has attained the finality. In view of the aforesaid factual scenario, the fact remains that the deceased was travelling in the vehicle in question at the time when the accident occurred. The said fact as discussed herein above has also been narrated in the main claim petition filed before the Tribunal. In view of the above, the Tribunal has grossly erred in concluding contrary while deciding the application under Section 166 of the Motor Vehicles Act. Thus, the finding that the deceased was not travelling in the vehicle in question is erroneous and contrary to the evidence on record and also contrary to the findings recorded while deciding the application filed under Section 140 of the Motor Vehicles Act.
6. In view of the above, the impugned award passed by the Tribunal under Section 166 of the Motor Vehicles Act is illegal and erroneous and hence deserves to be quashed and set aside. Since this Court has come to the conclusion that the deceased was travelling in the jeep bearing no. GJ-8T-4535, which is goods vehicle, the appellant Insurance Company cannot be held liable to satisfy the claim, in view of the principle laid down in the case of Asha Rani and others, reported in 2002(2) GLR 1001 (=AIR 2003(1) SC 607 the Apex Court has clearly held that insurer of the goods vehicle will not be liable to pay compensation in respect of death or bodily injury to passengers carried in a goods vehicle. In that view of the matter, the appellant Insurance Company cannot be held liable to satisfy the claim.
7. For the foregoing reasons, the appeal is allowed. The impugned judgment and award passed by the Tribunal is quashed 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 amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants and the Insurance Company shall be at liberty to recover the same from the owner of the vehicle. But, if the amount has not been withdrawn by the original claimants, the same shall be refunded to the Insurance Company along with interest @ 3% per annum. The appeals stand disposed of accordingly. No order as to costs.
[K.
S. JHAVERI, J.] /phalguni/