1.0 This appeal is directed against the judgment and award dated 27.04.2004 passed by learned Motor Accident Claims Tribunal (Auxi.), Surendranagar in Motor Accident Claim Petition No. 352 of 2000, wherein the Tribunal has awarded a sum of Rs.343000/- along with interest at the rate of 9% per annum from the date of application till realization.
2.0 According to the claimants, Hirabhai was travelling in G.J. 11T 7725 along with goods for purchasing vegetables. The truck was driven in a rash and negligent manner and in full speed by the driver. As a result of this the truck slipped into the ditch. Hirabhai sustained serious injuries and he succumbed to those injuries. The heirs of the deceased, therefore, filed the aforesaid claim petition wherein the aforesaid award came to be passed which is challenged in the present appeal.
3.0 The contention raised by learned Advocate for the appellant is that learned Tribunal erred in coming to the conclusion that the deceased was travelling along with his goods and that the deceased was unauthorized passenger of the truck.
4.0. 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.
5.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
6.0 Heard learned advocates for the parties and perused the documents on record.
7.0 According to the claimants, the deceased was travelling in the goods vehicle along with goods. After the accident, the panchnama was drawn. In the panchnama it was stated by the claimants that there were no goods found from the truck. Only empty bag was found from the truck. Further, in the claim petition, it is not stated that the deceased was travelling along with the goods such as chilies. Further, it is also not mentioned as to from where and at which price the chillies were purchased, etc. There is no documentary evidence to prove that the deceased was traveling with goods. In that view of the matter, I am of the opinion that the vehicle in question in which the deceased was travelling was a 'goods vehicle' and under the circumstances, the appellant-Insurance Company could not be held liable in view of the principle laid down in case of National Insurance Company Ltd. versus Savitri Devi and others etc (supra). Hence, the appeal of the Insurance Company deserves to be allowed.
8.0 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. 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