FA/284/1996 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 284 of 1996 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 ? ================================================== ORIENTAL INSURANCE CO LTD - Appellant(s) Versus CHHANABHAI MANGABHAI & 2 - Defendant(s) ================================================== Appearance : MR RAJNI H MEHTA for Appellant(s) : 1, MS SONAL D VYAS for Defendant(s) : 1, MR NILESH A PANDYA for Defendant(s) : 2 - 3. ================================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2008 ORAL JUDGMENT FA/284/1996 2/4 JUDGMENT 1. This appeal is directed against the judgement and award dated 30th November 1995 passed by Motor Accident Claims Tribunal No.9, Ahmedabad in Motor Accident Claims Petition No.174 of 1990 whereby the Tribunal has partly allowed the claim petition and awarded a sum of Rs.32080/- to the original claimants along with costs and interest at the rate of 15%. 2. The accident in question has occurred on 22.5.1990. On that day the respondent no.1-original claimant was proceeding in a Car bearing no.GBE/7810 from Ahmedabad to Dehgam and when the car reached near Vimal Mill, it turned turtle and the respondent no.1 suffered injuries. He took treatment and later on filed the aforesaid claim petition claiming compensation in the sum of Rs.46,999/-. The learned Tribunal after hearing the parties passed the aforesaid judgement and award which is challenged in the present appeal. 3. Mr. Sunil Parikh for Mr. Rajani Mehta, learned Advocate for the appellant submitted that the policy produced before the Tribunal is a policy covering a private car and admittedly the vehicle also is a private care wherein no passengers can be permitted to be carried, much less passengers on payment of hire or reward. FA/284/1996 3/4 JUDGMENT 4. Mr. Pandya, learned Advocate appearing for the respondent nos.2 and 3 submitted that the appellant company has not produced any documentary evidence to show that the use of the vehicle was restricted and that the owner has paid comprehensive premium for the vehicle. Ms Sonal D. Vyas, learned Advocate appearing for the original claimant submitted that the Tribunal has considered all the aspects of the matter including the policy in question and therefore no interference may be caused in this application. 5. As a result of hearing and perusal of the record certain aspects are not disputed. From paragraph 12 of the judgement it is very clear that the original applicant has deposed that the vehicle was of a private ownership and about 15 persons were traveling in the vehicle on the date of the accident. Having found this the Tribunal has observed that the vehicle owner had paid comprehensive premium for the vehicle and the insurance company has not produced the documentary evidence or adduced oral testimony showing that the use of the vehicle was restricted on the date of the accident. However, what the learned Tribunal failed to appreciate is that the policy in question has been produced at Exh.43. This policy clearly stipulates the limitation as to use. The policy covers use of any purpose other than [a] hire or reward and [b] organised racing or speed testing. Therefore the Tribunal has FA/284/1996 4/4 JUDGMENT committed an error in holding that the appellant has failed to point out that the use of the vehicle was restricted for hire or reward. Under the circumstances the appellant company cannot be held liable for payment of compensation. 6. In the premises aforesaid the appeal is allowed. The impugned judgement and award dated 30th November 1995 passed by Motor Accident Claims Tribunal No.9, Ahmedabad in Motor Accident Claims Petition No.174 of 1990 is quashed and set aside qua the appellant. The amount deposited before the Tribunal, in case it is not withdrawn, shall be refunded to the appellant. In case the amount is withdrawn it will be open to the appellant to recover the same from the owner of the vehicle. No order as to costs. [K.S. JHAVERI, J.] ar