Hirabhai Rajabhai Rathod vs Bhagaji Milji Rathod Vanzara and Others

M.D. Shah, J.—By this first appeal the appellants have challenged the judgment and award dated 11-8-2011 passed by the learned M.A.C.T. (Auxi.), Dhrangadhra in M.A.C.P. No. 57 of 2007. The claim petition was filed by legal heirs of the deceased to get compensation of Rs. 3,00,000/- from all the opponents in respect of death of the deceased Hirabhai Rajbhai Rathod caused due to vehicular accident which took place on 5-11-2006. It is the case of the claimants that on 5-11-2006, deceased was travelling as a pillion rider on motor cycle No. GJ-13-H-1492 to go to Dhrangadhra and when the motor cycle reached beside K.P. Industry on public road, due to rash and negligent driving of motor cycle by original opponent No. 1, the accident in question took place causing serious injuries to the deceased causing his death. The learned Tribunal after considering oral and documentary evidence partly allowed the claim petition of the appellants herein. Against the said award, legal heirs of the deceased have preferred this appeal.

It is submitted by Mr. Shah, 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 Ex. 45 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 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 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 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 11-8-2011 passed by the learned M.A.C.T. (Auxi.), Dhrangadhra in M.A.C.P. No. 57 of 2007 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.