FA/894/1990 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 894 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= NEW INDIA ASSURANCE CO LTD - Appellant(s) Versus LAGHARABHAI UKABHAI BHARWAD & 7 - Defendant(s) ========================================================= Appearance : MR RAJNI H MEHTA for Appellant(s) : 1, DS AFF.NOT FILED (R) for Defendant(s) : 1, MR BB NAIK for Defendant(s) : 1 - 6. NOTICE SERVED for Defendant(s) : 7 - 8. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 14/03/2008 ORAL JUDGMENT 1. By way of this appeal, the original opponent no.3 – present appellant has challenged the judgement and award dated 22.11.89 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad (Rural) at Mirzapur in M.A.C.P No. 790 of 1985 whereby the Tribunal directed the original opponent to jointly and/or severally pay a compensation of Rs. 83,500/- with interest at the rate of 12% per annum and proportionate costs. 2. The original applicant-present respondent no.1 had FA/894/1990 2/6 JUDGMENT filed a claim petition seeking compensation for Rs. 1,00,000/- for the accidental injuries sustained by him during the motor vehicular accident which had occurred on 24.08.85 near Shantipura village on the road from Sarkhej towards Sanand, while travelling in a truck bearing no. GTX 4599 alongwith his now deceased wife Dahiben and minor daughter Ranjanben-present respondent no.6 and one other person. The original applicants had boarded the truck with goods after paying necessary charges to the driver of the truck. The truck which belonged to original opponent no. 2 was being driven by original opponent no.1 at an excessive speed. Due to such rash and negligent driving, the truck turned upside down and the original applicant no.1's wife along with other passenger sustained injuries. As a result of the said accident, the wife of the original applicant no.1 succumbed to her injuries. The Tribunal after hearing the parties passed the aforesaid award. 3. Learned advocate for the appellant has contended that the present appellant ought to have been held not liable to pay the compensation amount as there is a specific condition in the policy not to use the vehicle for hire or reward. He has further contended that the Tribunal failed to appreciate the endorsement regarding FA/894/1990 3/6 JUDGMENT the 'limitation as to use' of the vehicle in the policy at Ex. 41. 3.1 Learned advocate appearing for the appellant has placed reliance on various decisions of this Court and the Apex Court in order to substantiate his contentions. The decisions relied by him are in the cases of Vanaji Dhulaji v Shivabhai Kashibhai reported in AIR 1980 Gujarat 154, Mallawwa and others v Oriental Insurance Co. Ltd. and others reported in 1999 ACJ 1, Oriental Insurance Co. Ltd v Devireddy Konda Reddy reported in 2003 SC 1009[2003(2) SCC 339] and New India Assurance Co. Ltd v Asharani reported in 2003(2) SCC 223. 4. Heard learned counsel for the parties. I have gone through the averments made in the appeal and documents placed on record including the award of the Tribunal. From the perusal of the award, it is clear that the present appellant had strongly contended before the Tribunal that the now deceased Dahiben was travelling in the truck as gratuitous passenger or a passenger for hire or reward and the vehicle was used against the permit issued by the R.T.O. in contravention with the terms and conditions of the insurance and that hence it is not liable. FA/894/1990 4/6 JUDGMENT 4.1 A perusal of the decisions relied on by the learned counsel for the appellant is relevant at this stage and the same is considered one by one. In the case of Vanaji Dhulaji (supra), this Court has held that vehicle not covered by permit to ply for hire or reward on date of contract of insurance used for that purpose in breach of specific condition in policy which excluded such use and the insurance company is not liable to satisfy award against insured in respect of third party risks. 4.2 In the case of Mallawa and others(supra) the Apex Court has held that the insurance company is not liable for death or injuries sustained by persons carried in a goods vehicle either along with their goods or after paying fare or gratuitously. 4.3 In the case of Oriental Insurance Co. Ltd (supra) the Apex Court has taken the view that the provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefore. 4.4 In the case of New India Assurance Co. Ltd (supra), FA/894/1990 5/6 JUDGMENT keeping in view the provisions of the 1988 Act, the Apex Court has taken the same view as in Oriental Insurance Co. Ltd (supra) that as the provisions do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor. 5. As a result of hearing and perusal of records and in view of the decisions of this Court and the Apex Court, I am of the opinion that the contentions raised by the appellant is required to be accepted. The fact that the vehicle in question was a goods vehicle cannot be disputed and therefore the appellant cannot be held liable to undertake third party risk in a case where the vehicle is used for a purpose other than the one for which the policy is covered. The passengers whether paying fare or whether carrying goods with them in the said truck are not required to be covered and in fact not covered by the policy in question and therefore the Tribunal ought not to have passed any award against the present appellant-Insurance Company. 6. In that view of the matter, the award of the Tribunal is required to be modified by not holding the present appellant liable for the compensation payable to FA/894/1990 6/6 JUDGMENT the present respondent no.1. 7. In the premises aforesaid, the appeal is allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance company-present appellant. The amount deposited by the insurance company shall be refunded by the Tribunal incase the same is not withdrawn by the original claimants. It is made clear that the original claimants are at liberty to recover the said amount from the original owner. However, incase the amount is already withdrawn by the original claimants, the same shall be recovered by the insurance company from the original owner. No order as to costs. (K.S. JHAVERI, J.) Divya//