FA/2829/1999 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2829 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE CO LTD - Appellant(s) Versus SULEMAN MOHAMED GHACHI & 2 - Defendant(s) ========================================================= Appearance : MR AJAY R MEHTA for Appellant(s) : 1,MR SUNIT S SHAH for Appellant(s) : 1, MR NV ANJARIA for Defendant(s) : 1, RULE SERVED for Defendant(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2008 ORAL JUDGMENT 1.0 This appeal is directed against the judgment and order dated 09.10.1998 passed by the Motor Accident FA/2829/1999 2/6 JUDGMENT Claims Tribunal (Aux. III), Junagadh in Motor Accident Claims No. 342 of 1990 whereby, the appellant – Insurance Company was also held jointly and severally liable to pay an amount of Rs.19,000/- towards compensation. 2.0 The brief facts of the case are that on 29.08.1989, at around 0830 hrs., while respondent no. 1 herein was travelling in an Auto-rickshaw Goods Carriage bearing Registration No. GJW – 8206 driven by respondent no. 2 herein, it turned turtle as a result of which respondent no. 1 sustained severe bodily injuries. Respondent no. 1, therefore, filed a claim petition before the M.A.C.T., Junagadh claiming compensation of Rs.25,000/-. 2.1 After hearing learned Advocates for both the sides, the learned trial Judge awarded an amount of Rs.19,000/- with interest and the opponents therein, including the appellant - Insurance Company, were held jointly and severally liable to pay the same. Being aggrieved by the said award, the appellant – Insurance Company has approached this Court by way of this Appeal. FA/2829/1999 3/6 JUDGMENT 3.0 Mr. A. R. Mehta learned Advocate for the appellant - Insurance Company has contented that since respondent no. 1 herein was travelling as an unauthorized passenger in a goods vehicle, the appellant – Insurance Company could not be held liable to pay compensation. In support thereof, he has relied upon a decision of the Apex Court in the case of New India Assurance Co. Ltd. v. Asha Rani and ors. reported in 2003 (1) A.C.J. 1 wherein, it has been held that an Insurance Company shall not be liable, if a passenger travelling in a goods vehicle has died or sustained injuries while the said vehicle met with an accident. 4.0 Mr. N. V. Anjaria learned Advocate for respondent no. 1 has fairly conceded that he would not be able to justify the award passed by the Court below qua the liability of the appellant – Insurance Company is concerned in view of the principle laid down in New India Assurance Co. Ltd. v. Asha Rani's case (supra), FA/2829/1999 4/6 JUDGMENT 5.0 Heard learned counsel for the respective parties and perused the documents on record. The challenge to the award is that respondent no. 1 was traveling in a “goods vehicle” and, therefore, no liability can be fastened on the Insurance Company. It is not in dispute that the vehicle involved in the accident is a “goods carrier”. Therefore, whosoever takes a ride on it shall be doing so at his own risk and if some unfortunate event takes place, then neither the Driver of the said vehicle nor its Owner could be held liable to pay compensation and if the said vehicle is insured with the Insurance Company, then no liability could be fastened on the Insurance Company for the death or injuries sustained in the accident. 6.0 The aforesaid principle has been laid down by a Division Bench of this Court in the case of United India Insurance Co. Ltd. v. Manjulaben Purshottamdas Patel & ors. reported in 1994 (1) G.L.R. pg. 269 wherein, it has been held that a “Tractor” or a “Trailer” being a “goods FA/2829/1999 5/6 JUDGMENT vehicle”, the Insurance Company could not be made liable to pay compensation. 6.1 Similar principle has been laid down by the Hon'ble the High Court of Punjab and Haryana in the case of New India Assurance Co. Ltd. v. Tarawati and others reported in 1994 A.C.J. pg. 822 and in recent decisions of the Hon'ble the Apex Court in the cases of Ramashray Singh v. New India Assurance Co. Ltd. & ors reported in J.T. 2003 (6) S.C. pg. 97, New India Assurance Co. Ltd. v. Asha Rani & ors. (supra) and National Insurance Co. Ltd. v. V. Chinnama and others reported in A.I.R. 2004 S.C. pg. 4338. 7.0 In above view of the matter, it is amply clear that since the vehicle in question is a “goods vehicle”, the appellant – Insurance Company could not be held liable to pay compensation. Hence, it has to be concluded that the Tribunal has committed an error in holding the appellant – FA/2829/1999 6/6 JUDGMENT Insurance Company liable to pay compensation. 8.0 In the result, the Appeal is partly allowed. The impugned judgment and award dated 09.10.1998 passed by the Motor Accident Claims Tribunal (Aux. III), Junagadh in Motor Accident Claims No. 342 of 1990 is modified to the extent that the direction qua fastening liability on the appellant – Insurance Company to pay the amount of compensation is quashed and set aside. The rest part of the impugned award is confirmed. It is clarified that the amount deposited by the appellant – Insurance Company, pursuant to the impugned award passed by the Tribunal, shall be returned to the appellant – Insurance Company by way of account payee cheque and if the same is already withdrawn by the claimants, then the appellant – Insurance Company shall be at liberty to recover the same from the claimants. No order as to costs. (K. S. JHAVERI, J.) Pravin/*