JORJIBHAI BHURABHAI MAKWANA Vs. SHANTILAL

JUDGEMENT

(1.) In claim petition No.1225 of 1988, by judgment and award dtd. 27/2/2001, learned MACT, Panchmahal @ Godhra assessed compensation of Rs.2,50,000.00 with proportionate cost and running interest at the rate of 9% p.a. from the date of filing the claim petition till realization only against the driver and owner of the offending truck, and exonerated the insurance company. Being aggrieved by exoneration of the insurance company from liability to pay compensation, the appellants ' original claimants have preferred this First Appeal u/s 173 of the MV Act.

(2.) Brief facts of the case are as under:-

(3.) Learned advocate Ms. Sneha Joshi for the appellants would submit that the learned Tribunal has grossly erred in exonerating the insurance company. She would further submit that the learned Tribunal has incorrectly applied the judgment of the Hon'ble Apex Court in case of Mallawwa Vs. Oriental Insurance Company Ltd., AIR 1999 SC 589. She would further submit that the learned Tribunal rather was required to apply the ratio laid down by the Hon'ble Apex Court in case of New India Assurance Company Ltd. Vs. Satpal Singh, AIR 2000 SC 235. She would further submit that the learned Tribunal after believing that the incident took place because of the negligency of the driver of the offending vehicle i.e. truck bearing registration No.GRY 4634 and held the driver and owner of the offending vehicle liable to pay compensation, erroneously exonerated the insurance company on the ground that vehicle involved in the road accident is goods carriage vehicle and the deceased was travelling in said vehicle as a gratuitous passenger. She would further submit that since there is no cavil on the fact that the insurance policy was in existence on the date of the road accident, which was covering risk of the offending vehicle having been comprehensive in nature, the insurance company was vicariously liable to pay compensation by indemnifying the risk of the owner, more particularly, when the deceased was third party.