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Judgment
This First Appeal is filed by the appellant-Insurance Company
under Section 173 of the Motor Vehicle Act praying for modifying the
judgment and order dated 06.05.2005 passed by the learned Motor
Accident Claims Tribunal (Aux III), Surendranagar in M.A.C.P. No.755
of 2002, whereby the learned Tribunal had awarded compensation to
the tune of Rs.3,17,480/- to the original claimants from the appellant
and respondent No.3 with interest at the rate of 9% from the date of
filing of the claim petition till the realization.
Brief facts of the case is that on 14.10.2001 during the night at
about 8:30 p.m, when the deceased was traveling in a Truck bearing
registration No.GJ-17-T-5624 on Dholera-Viramgam road with goods,
however, the driver could not control over the steering due to excessive
speed and therefore, the said Truck turned turtled. As a result of which,
the deceased died on the spot and therefore, the legal heirs of the
deceased have filed Claim Petition seeking compensation to the tune of
Rs.2,00,000/-.
Heard Mr. Maulik Shelat, learned advocate for the appellant-
Insurance Company, Mr. Yash Joshi, learned advocate for Mr. Nirav
Thakkar, learned advocate for the respondent No.3. Respondent Nos.1
and 4 were deleted as per the order of the Court. Rule issued to
respondent No.2 is duly served, however, none appeared.
Mr. Maulik Shelat, learned advocate for the appellant-Insurance
Company contended that the deceased was traveling in goods vehicle
not as owner of goods, but as a passenger. From the record, it is
revealed that the deceased was gratuitous passenger in the goods
vehicle and therefore, as per the provisions of law, there is no liability of
the appellant-company to pay the amount of compensation. Therefore,
Insurance Company is not liable to pay compensation because the
deceased was traveling as a passenger in the goods vehicle. He
further contended that since deceased was traveling in goods vehicle as
gratuitous passenger, liability of the Insurance company is not covered
under the insurance policy. He prayed for exonerating the Insurance
Company from the compensation.
Mr. Yash Joshi, learned advocate has vehemently argued that the
contents of the affidavit are not properly explained by the uncle of the
claimants in the statement given by him. It is not established that the
deceased was traveling in goods vehicle i.e. Truck as a passenger and
is not established that who was the owner of the goods, which were
lying in the Truck. He therefore, prayed to dismiss the appeal filed by
the Insurance Company.
Having considered the submissions made by learned advocates
for the parties and having carefully examined the material available on
record, this Court finds substance in the submissions made by learned
advocate for the appellant-Insurance Company. In light of these facts,
the learned Tribunal has committed grave error in finding the insurance
company liable to pay the amount of compensation. The deceased was
traveling in goods vehicle as gratuitous passenger and therefore,
Insurance Company is not liable to pay compensation to claimants and
only owner i.e. respondent No.3 is liable to pay compensation.
Therefore, contention raised by learned advocate Mr.Maulik Shelat, can
be accepted and the Insurance Company is hereby exonerated from the
liability of paying the amount compensation. Therefore, there is
substance in present appeal. Accordingly, present appeal is partly
allowed with an observation that the amount which is withdrawn by the
claimants would not be recovered from the claimants and remaining
amount lying in FDR shall be returned back to the Insurance Company.
It is open for the claimants to recover the said amount from the
registered owner of the vehicle in accident. Rule is made absolute to the
aforesaid extent. Records and proceedings, if any, be sent back to the
trial Court, concerned forthwith.