NATIONAL INSURANCE COMPANY LTD. Vs. SIRAJBHAI KALUBHAI ABHROLIYA

JUDGEMENT

(1.) First Appeal No.1087 of 2014 is filed by the appellant - Insurance Company under Sec. 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dtd. 24/6/2013 passed by the Motor Accident Claims Tribunal (Aux.), Panchmahals at Godhra in Motor Accident Claim Petition No.1145 of 2006, by which, the Tribunal has partly allowed the claim petition by awarding Rs.2,92,700.00 with 9% p.a. interest to be paid to claimants, by holding opponents - driver, owner and insurance company liable, jointly and severally. By the impugned award, the Tribunal has decided two claim petitions i.e. MACP No.1145 of 2006 and 1430 of 2006, together.

(2.) The facts of the present appeals are that, on 6/5/2006, the claimant(s) was travelling as a labourer in the Tempo bearing registration No.GJ-5-V-6626 along with the other labourer and the goods - live stock (goats). Due to the rash and negligent driving the tempo driver, the said tempo got turn turtle near Navjivan Hotel on Bharuch-Vadodara road. The claimant(s) got various injuries. The complaint was lodged before the Nabipur Police Station being FIR - I No.35 of 2006. Since the claimant has suffered serious injuries, they filed claim petition(s) before the Tribunal for compensation. The notices were served to the opponents - driver, owner and insurance company. The insurance company has filed its written statement at Exh.13. The issues were framed by the Tribunal. Oral as well as documentary evidence were led before the Tribunal. After hearing the submissions made by the rival parties, the Tribunal has partly allowed the claim petition(s) and awarded compensation as noted above. Hence, the insurance company has filed these appeals before this Court.

(3.) Learned advocate Ms. Lilu K. Bhaya for the appellant - Insurance Company has submitted that as the claimants are travelling in the goods vehicle as unauthorised passenger, the Tribunal has committed error in awarding the amount of compensation by holding the appellant - insurance company liable. She has also submitted that at the time of accident, about ten persons were travelling in the insured vehicle as against the sitting capacity of one person. She has also submitted that the Tribunal has failed to appreciate the statement given by the driver of the vehicle. She has further submitted that the Tribunal has erred in considering the amount of monthly income Rs.3,000.00 in absence of documentary evidence available on record. Therefore, she has submitted that on the ground of unauthorised passenger travelling in the goods vehicle, the present appeal deserves to be allowed. In support of her submissions, she has submitted that our High Court has taken a view in First Appeal No. 710 of 2007 to 713 of 2007 dtd. 7/4/2014, more particularly Paras : 42 and 44. She has submitted that even in view of the observations made by this Court, no order for pay and recover can be passed in such circumstances, as it can be considered as fundamental breach. She has also relied on the decision of our High Court rendered in First Appeal No.4601 of 2007 and 4602 of 2007 dtd. 15/6/2017 and has submitted that the insurance company is exonerated for the payment of compensation in that matter. She has further relied on the decision rendered in First Appeal No.4215 of 2008 dtd. 12/1/2020, and has submitted that in the said decision, the Insurance is exonerated where the victim is found as gratuitous passenger in the goods vehicle and therefore, she has submitted that the appeal(s) may be allowed and the amount of compensation awarded by the Tribunal is required to be interfered with.