Important Point
Insurer is not liable to indemnify gratuitous passenger.

R.P. Dholaria, J.

1. This group of eighteen appeals is filed by appellant - National Insurance Company Limited against the common judgment & award dated 31.1.2007 passed by learned Motor Accident Claims Tribunal, Fast Track Court No. 5, Ahmedabad (Rural) in Motor Accident Claim Petition No. 1345 of 1997 & other group petitions. The appellant was insurer of Matador No. GJ-01-TT-7318 which is admittedly a goods carriage vehicle wherein the injured claimants as well as deceased were travelling on the day of accident which had taken place on 10.7.1997. The said goods carriage vehicle was collided with one truck No. GJ-12-U-8834 insured with another insurance company i.e. New India Assurance Company Limited. It is a case of claimants that due to said accident, all persons who were travelling in said goods carriage vehicle sustained injuries and some of them succumbed to injuries. The several claim petitions came to be filed by victims of said accident. Learned Tribunal vide its impugned common judgment was pleased to allow all claim petitions whereby learned Tribunal has directed appellant to pay 30% of awarded amount and rest 70% of awarded amount to be paid by New India Assurance Company Ltd.

2. Learned Advocate Mr. Maulik Shelat for the appellant submitted that once learned Tribunal has found that all persons travelling in said goods carriage vehicle at time of accident were passengers then as per the provisions of Section 147 of Motor Vehicles Act and as per the decision of the Honorable Apex Court in the case of New India Assurance Company Ltd. Vs. Asha Rani, reported in (2003) 2 SCC 223 and catena of decisions, appellant insurer of said goods carriage vehicle could not have held liable to pay compensation. He has further submitted that learned Tribunal has committed an error of law by directing the appellant to pay 30% of awarded amount to claimants and then the appellant is entitled to recover the same from the owner of goods carriage vehicle. According to him, learned Tribunal has no power under law to give such direction as there was no statutory liability cast upon the appellant to pay compensation to passengers travelling in goods carriage vehicle. In support of his argument, he has relied upon the recent decision dated 18.11.2013 of this Court delivered in First Appeal No. 2121 of 2008. According to Mr. Shelat, as per the settled legal position of law, the appellant could not have been held liable to pay compensation and then to recover it from the owner of goods carriage vehicle.

3. On the other-hand, Mr. Hiren Modi and Mr. Paresh Darji, learned advocates appearing for the respective claimants have supported the impugned judgment of learned Tribunal. They have submitted that the deceased and injured claimants were travelling in goods carriage vehicle and it is a case of composite negligence for claimants as none of claimants were driver/tort-feasors of vehicles involved in the accident. So, according to learned advocates for the claimants, even if appellant will not be held liable to pay compensation, in that case, as per principles laid down by the Hon'ble Apex Court in its recent decision in the case of Khenyei Vs. New India Assurance Company Limited, reported in (2015) 9 SCC 273, claimants can recover the entire compensation from any of tort-feasors including New India Assurance Company Limited. They further submitted that if this Court comes to the conclusion that the appellant is not at all liable to pay compensation, in that event, this Court may pass appropriate order by which either the claimants will be entitled to receive 30% of awarded amount so deposited by the appellant from New India Assurance Company Limited or the appellant insurance company may recover 30% of awarded amount so deposited by it in tribunal from another insurance company.

4. Learned advocate Mr. Palak Thakker appearing for New India Assurance Company Limited has supported the impugned judgment. However, he has fairly submitted that