NEW INDIA ASSURANCE COMPANY LIMITED Vs. ROSHANBIBI

JUDGEMENT

(1.) These appeals are filed by the appellant being aggrieved against the judgment and award dated 27th April, 1994 passed by the Motor Accident Claims Tribunal (Main), Mehsana in M.A.C.Petition Nos. 213 and 269 of 1988.

(2.) The facts leading to filing of these appeals are such that two claim petitions i.e. M.A.C.Petition Nos. 213 and 269 of 1988 arose out of the same accident, which occurred on 26th December, 1986 between Baspa and Gochand. It was alleged that deceased Jafarbhai Sahyabhai was driving the autorickhaw bearing registration No. GRU 84, wherein Shekh Ismailbhai Husenbhai was travelling. It is further alleged that at the time of the accident, tanker bearing registration No. GTY 5559 came from opposite direction and collided with auto rickshaw causing death of auto rickshaw driver and causing injuries to the passenger. Heirs and legal representatives of the deceased have filed M.A.C.Petition No. 269 of 1988 claiming compensation,whereas M.A.C.Petition No. 213 of 1988 is filed by the injured claimant claiming compensation for the injuries suffered by him. Both claim petitions were decided by common judgment and ordered the opponents No. 1,2 and 3 who are driver, owner and insurer of Tanker No. GTY 5559 jointly and severally to pay the amount of Rs.37,500/- to the applicant of M.A.C.Petition No. 213 of 1988 and Rs.2,07,600/- to the applicants of M.A.C.Petition No. 269 of 1988 with running interest @15% per annum from the date of respective applications and till their realisation and proportionate costs thereon. Hence, these appeals are filed by the Insurance Company of the tanker.

(3.) Heard learned Advocates for the parties. Learned advocate Mr.Parikh submits that it has come in the evidence that on the day of the accident there was no legal and valid permit to ply the truck and so prima facie there is breach of condition of policy, in spite of that, the Tribunal committed error in holding the Insurance Company liable to pay the compensation. Reliance is placed on the decision in the case of New India Assurance Company Limited v. Kamlaben Wd/o Suitansinh Hakumsinh Jadav and others, 1993 1 GLR 779. Learned Advocate Mr.Nair appearing for respondent No. 16 and learned advocate Mr.Adeshra appearing for respondents-original claimants submit that the impugned judgment and award is just and proper and need not be interfered with.