1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1051 OF 1995 The New India Assurance Co. Ltd. ...Appellant vs. 1 Shaikh Suleman Shaikh Sardar 2 Smt.Sugrabi w/o Abdul Rauf 3 Master Shahid s/o Abdul Rauf 4 Miss Shahin d/o Abdul Rauf 5 Miss Jakiyabi d/o Abdul Rauf 6 Sk. Daud Mohmad Isak ...Respondents Mr.S.R.Singh for the appellant Ms Sonia Miskin i/b Mr.N.B.Shah for respondent nos.1 to 3 CORAM :A.S.OKA,J. DATE : FEBRUARY 10, 2010 JUDGMENT : 1 The submissions of the learned counsel for the parties were heard on the earlier date. The challenge in this First Appeal is to the Judgment and Award dated 15th February 1994 passed by the Motor Accident Claims Tribunal in a claim petition under section 110-A of the Motor Vehicles Act,1988 (hereinafter referred to as the said Act). The 1st to 5th respondents are the original claimants. The claim is made on account of death of one Abdul Rauf in a accident involving two trucks bearing registration nos.MHS 8786 and MWD 1280. The accident occurred on 1st February 1986. The case is that the deceased along with two others were proceeding by truck No.MHS 8786 from Dhule to Bombay with their goats. The goats were being carried for selling the same in Bombay. There was a head on collision between the two trucks. As a result of impact, the said Abdul died on the spot and the entire cargo of 75 goats was destroyed. The Appellant is the insurer of truck no.MHS 8786. The contention of the appellant was that the deceased was a 2 passenger for hire or reward in a goods vehicle and therefore, the liability was not covered. It was contended that there was no special authorisation/permit obtained from the Regional Transport Authority for transporting the animals by the goods truck. Thus, the contention was that there was a breach of terms and conditions of the policy. The owners and insurers of both the trucks were impleaded as parties. By the impugned Award, the compensation of Rs.1,20,000/- was granted by the Tribunal along with interest at the rate of 12% per annum. The Tribunal held that the opponents viz. Owners and insurers of both the trucks were jointly and severally liable to pay compensation. 2 The learned counsel for the appellant invited my attention to the findings recorded by the Tribunal. He pointed out that even the deposition of the father of the deceased shows that a sum of Rs.50/- was paid by the deceased towards fare. He pointed out that the Tribunal recorded a finding that the owner or the driver had not obtained permit for carrying animals. He pointed out the finding recorded in paragraph 24 of the impugned Judgment. He also pointed out that the Tribunal held that the owner and insurer of the truck were not liable to pay compensation on account of loss of cargo. He therefore submitted that this was a clear case that the deceased was a fare paying passenger and therefore, the appellant ought to have been exonerated. The learned counsel for the first to third respondents supported the award. 3 I have given careful consideration to the submissions. Going by the findings recorded by the Tribunal, it has been held that the admittedly the goats were carried by the goods truck insured with the 3 appellant. Evidence was brought on record to show that the Regional Transport office had not issued any special permit for carrying the animals. There is another finding recorded by the Tribunal in paragraphs 18 and 19 of the Judgment that the first witness examined by the claimant who was the father of the deceased stated that the deceased use to pay Rs.50/- whenever he travelled by with the truck. Therefore, the Tribunal accepted that the deceased had paid a sum of Rs.50/- to the driver as a fare. There is finding that no permit was obtained by the owner of the truck for carrying animals. Thus, it cannot he said that the deceased had lawfully hired the goods vehicle for carrying goats. Moreover, the deceased was admittedly the passenger who had paid the fare. Hence, the Appellant was not liable to indemnify the insured. To that extent, the award will need modification. 4 The report submitted by the Tribunal shows that the Appellant had deposited a total amount of Rs.1,25,659/- with the Tribunal and the said amount has been withdrawn by the claimants. 5 There is a joint and several award made by the Tribunal against the owners and insurers of both the trucks. Considering this aspect, now the appellant will have to be permitted to recover the amount from the insurer of the other truck. The Appellant shall not be entitled to recover the amount from the claimants which was withdrawn by the them. 6 Hence, I pass the following order : i) The claim petition no.103 of 1986 stands dismissed as against the appellant-3rd opponent. 4 ii)The rest of the Award is confirmed and the opponent nos.1, 2, 5 and 6 shall continue to jointly and severally liable to pay compensation. iii)The appellant shall not be entitled to recover amount withdrawn by the claimants and it will be open for the appellant to recover the amount from the other opponent by executing the same Award. iv)The Appeal is allowed on above terms. v) There will be no order as to costs. JUDGE