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Judgment
This appeal is filed by the insurance company challenging its liability arising out of the award of the Motor Accident Claims Tribunal dated
30.08.2005 in MACP No. 492 of 2001.
Brief facts are as under:
Respondent No.1-original claimant was travelling in a matador along with other passengers when the vehicle met with an accident on 21.05.2001.
This resulted into bodily injuries. He therefore, filed above mentioned claim petition seeking compensation of Rs. 75,000/- from the driver/owner
and insurer of the vehicle involved in the accident. According to the claimant, he was plying a chhakado rickshaw for passengers and goods. On
the date of the accident, he was carrying goods in the chhakado rickshaw belonged to the other people. The rickshaw had a break down. He
therefore, sat in the matador which was passing by, after paying fare along with goods. In the written submission, he challenged this position
contending that the claimant was a gratuitous passenger and the insurance company shall have the liability to cover the risk. The Claims Tribunal by
the impugned award granted compensation of Rs. 42,060/- to the claimant and also held that the insurance company was liable to pay the same.
The insurance company believed the version of the claimant that he was travelling in the matador with goods. This award the insurance company
has challenged in this appeal.
I have heard learned advocates for the parties and perused the evidence on record. The insurance policy which was produced at Exh 41
provided certain limitations of insurance. One of them being the policy would not cover use for carrying passengers in the vehicle except employees
not exceeding six in number coming under the purview of the Workmen''s Compensation Act,1923. Thus clearly the insurance policy would not
cover the risk of a gratuitous passenger. The vehicle being a goods carriage vehicle, it is in this respect the question of the claimant travelling with
the goods becomes relevant.
In this context, in the claim petition as well as in the deposition, the claimant had contended that on the date of the accident, his chhakado
rickshaw had a breakdown. He was carrying pulses. He was sitting in the matador with the pulses and the damaged part of his chhakado rickshaw
when the accident took-place. This version was challenged by the insurance company in the cross-examination. In his police statement, he has not
disclosed such facts to which, while agreeing to the suggestion he clarified that no questions on this aspect were asked by the police.
FIR lodged by one Ishwarbhai Mavjibhai was produced at Exh 38. The first informant stated that he was a labourer and was a passenger in the
said matador going to collect earthquake relief. The insurance company heavily relies on this FIR. However, one cannot lose sight of the fact that
the FIR was not lodged by the claimant but by someone else. There is nothing in the FIR to suggest that the claimant was also a labourer and
travelling in the matador to collect earthquake relief. The Tribunal had no reason to discard the claimant''s version that he was travelling with the
goods and therefore, correctly believed the same.
No interference is called for. First appeal along with Cross Objection is dismissed. R & P to be transmitted back to the Trial Court.