Desai Arunaben and 2 First Appeal Nos. 2639 and 2640 of 2003 vs Desai Rameshbhai Virabhai and 1 Another

By this first appeal, the appellant herein-original applicants have challenged the judgment and award dated 31.07.2007 passed by the learned M.A.C.T.(Auxi.), Sabarkantha at Himatnagar in M.A.C.P. No. 446 of 2003. The claim petition was filed by the claimants to get compensation of Rs. 11,00,000/- from all the opponents in respect of death of Amitkumar caused due to vehicular accident which took place on 12.05.2003. It is the case of the claimants that on 12.05.2003, deceased had gone to attend marriage at Kheralu and deceased was returning from Kheralu on the motor cycle which was driven by opponent No. 1 rashly and negligently. When the motor cycle reached near village Valasana at that time truck was coming from opposite side and because of head lights of the truck, opponent No. 1 lost control over the motor cycle and thereby motor cycle slipped and accident took place. The learned Tribunal after considering oral and documentary evidence by order dated 31.07.2007 partly allowed the claim petition of the appellant herein. Against the said award, the appellant-original claimants has preferred this appeal.

It is submitted by Mr. Desai, learned advocate for the appellants herein that learned Tribunal has not properly appreciated evidence on record. It is also submitted that as per the policy of the motor cycle, it is package policy and so insurance company is liable to pay compensation. Learned advocate for the appellants took this Court to the policy at Exh. 27 which shows that policy is package policy and insurance company is liable to pay compensation. Therefore, it is requested to allow this appeal.

Heard learned advocates for the respective parties. This Court has gone through the judgment and award dated 31.07.2007 passed by the learned Tribunal together with oral as well as documentary evidence on record.

It is not in dispute that in the accident, deceased died. Only point involved in this appeal is regarding liability. Appellants have not raised any point with respect to enhancement of compensation. This Court has gone through the policy produced at Exh. 27 and it prima facie appears that policy is package policy and Tribunal has committed error in exonerating insurance company. This Court has gone through the decision of Hon''ble Supreme Court in the case of National Insurance Company Ltd. Vs. Balakrishnan and Another, . It is held by the Hon''ble Supreme Court in the decision of Balakrishnan (supra) that if the policy is package policy, then insurance company is liable to pay compensation.

Considering the facts and circumstances and considering the evidence on record and ratio laid down by the Hon''ble Supreme Court in Balakrishnan (supra), in opinion of this Court, all the original opponents are liable to pay compensation. In view of above, the first appeal is partly allowed. It is held that all the original opponents are liable to pay the compensation. Judgment and award dated 31.07.2007 passed by the learned M.A.C.T. (Auxi.), Sabarkantha at Himatnagar in M.A.C.P. No. 446 of 2003 is modified to the aforesaid extent. The remaining part of the judgment and award would remain unaltered. If any amount is paid in pursuance of the order passed by the Tribunal u/s 140 of the M.V. Act, then that amount will be adjusted while disbursing the amount by the Tribunal. Record and Proceedings, if any, be sent to the concerned Tribunal forthwith.