1. This appeal has been preferred against the judgment and award dated 10.10.2005 passed by the Motor Accident Claims Tribunal (Aux.), Mahesana in M.A.C.P. No.1004/1995 whereby, the claim petition was allowed in part.
2. The aforesaid claim petition was preferred in connection with the vehicular accident that took place on 11.12.1994 at around 2100 hrs. involving a Truck bearing registration No. GJ-03-T-2696 and a Jeep belonging to respondent no.3-Police Department bearing registration No. GJV-5598, which was driven by respondent no.2 at the relevant time. Respondent no.1 herein, original claimant, who was travelling in the said Jeep at the relevant time, preferred the claim petition claiming total compensation of Rs.1,00,000/-, which was allowed in party, by way of impugned award.
3. It is mainly contented on behalf of the appellant-Insurance Company that the Insurance Policy (Exh.61) does not cover the liability of the employees of the insured. Reliance has been placed on Clause-3 of the "General Exceptions" included in the Insurance Policy, which reads as under;
"3. Except so far as is necessary to meet the requirements of the Motor Vehicles Act the Company shall not be liable in respect of death arising out of and in the course of employment of a person in the employment of the Insured or in the employment of any person who is indemnified under this Policy or bodily injury sustained by such person arising out of and in the course of such employment."
3.1 Reliance has also been placed on two unreported decisions of this Court passed in First Appeal No.2214 of 1999 dated 07.02.2012 and First Appeal No. 3532 of 2000 dated 18.04.2012.
4. On the other hand, Mr. Shah learned counsel for respondent no.1-claimant submitted that premium was paid for carrying 32 passengers and therefore, the Tribunal has rightly held the appellant liable to satisfy the claim. Reliance has been placed on a decision of this Court in the case of New India Assurance Co. Ltd. v. Jyotikaben Bhupendrabhai Maniyar & ors., 1999(3) G.L.R. 2074. In that case, it has been held that statutory insurance policy is not required only in four categories of employees of the owner of a vehicle, namely, driver, conductor, ticket checker and persons required to be carried by virtue of a contract of carriage of goods by a goods vehicle.
5. Heard learned counsel for the respective parties. It appears from the record that respondent no.1-claimant was travelling in the Jeep in question in the capacity of an 'employee' and not in the capacity of a 'passenger' at the relevant point of time. The claimant was serving as a Police Inspector in the Office of respondent no.3 at the relevant point of time. Had he been travelling in the capacity of a 'passenger', then the position would have been altogether different but, since it is evident that he was travelling in the capacity of an 'employee' of respondent no.3, the appellant-Insurance Company could not be saddled with the liability of making payment of compensation. The premium that has been paid does not cover 'employee'. Hence, the decision relied upon by learned counsel Mr. Shah shall not apply to the case on hand.
6. Considering the facts of the case and the principle laid down by the Division Bench of this Court in the unreported decision in First Appeal No.2214 of 1999 dated 07.02.2012, I am of the view that the Tribunal has seriously erred in holding the appellant-Insurance Company 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 and set aside only qua the extent of imposition of liability upon 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 claimant, then the same shall not be recovered from the original claimant but, shall be recovered from the owner of the offending vehicle and if the amount has not been withdrawn by the original claimant, then the same shall be refunded to the Insurance Company and the claimant shall be at liberty to recover the balance amount from the owner of the offending vehicle. Registry is directed to transmit the amount lying with this Court to the Tribunal concerned forthwith. The impugned award stands modified to the above extent. The appeal stand disposed of accordingly. No order as to costs.
[K.
S. JHAVERI, J.] Pravin/* Top