JUDGMENT

1. Being aggrieved and dissatisfied with the judgment and award dated 31.10.2012 passed in MACP No.157 of 2009 by MAC Tribunal (Main) Kutch at Bhuj, the appellant – original opponent No.3 has preferred this First Appeal under Section 173 of the Motor Vehicles Act (for short ‘the MV Act’), wherein the learned Tribunal has awarded compensation of Rs.4,60,500/- under various heads to the respondents – original claimants as under :

2. On the fateful day i.e. on 28.2.2009, the deceased, who was 19 years old and serving as a Cleaner on the Luxury Bus bearing No.GJ-18- U-9998, met with an accident due to electrocution while he was on duty. While cleaning the roof of the bus, he came in contact with a live electric wire passing overhead the bus. On account of electrocution, the deceased suffered burn injuries. He was shifted to the J.K.Hospital at Bhuj where he was kept under treatment for 2 days and later, on 2.3.2009, succumbed to the injuries.

3. The claimants being the legal representatives of the deceased i.e. father, mother and two sisters respectively, approached the learned MAC Tribunal under Section 163-A of the MV Act and claimed Rs.5,31,200/- towards compensation. Upon service of notice, the original opponent No.1 – driver appeared and filed his written statement vide Exh.17, denying, inter-alia, negligence on his part. However, he admitted the fact that the deceased was cleaning the roof of the bus and at that time, due to electrocution, the unfortunate incident took place. Further, the original opponent No.2 – owner, though duly served with the notice, had chosen not to appear and thereby, the facts of the claim petition remained uncontroverted qua him. Whereas, the original opponent No.3 appeared before the Tribunal and filed written statement at Exh.25, denying, interalia, negligence on the part of driver, involvement of the vehicle since there is no accident caused by the vehicle insured by the appellant – Insurance Co., the age and income part as claimed by the claimants was also denied and also took contention that the vehicle is not covered by the policy.

4. The learned Tribunal, after having considered the evidence produced on record, came to the conclusion that the claimants are entitled to the compensation of Rs.4,60,500/- under various heads.

5. Thus, being aggrieved by the aforesaid, the present First appeal came to be filed by the appellant – Insurance Co. before this Court, challenging the legality and validity of the impugned judgment and award.

6. I have heard Mr.G.C.Majmudar, learned advocate for the appellant – Insurance Co., Mr.Nishit P. Bhalodi, learned advocate for respondent Nos.2, 3 and 4 – original claimants and Mr.Kirtidev R. Dave, learned advocate for the respondent No.1. The respondent Nos.5 and 6, though served, have chosen not to appear.

7. Mr.G.C.Majmudar, learned advocate for the appellant – Insurance Co., has mainly submitted that the accident was not caused as a result of use of motor vehicle and, therefore, the claim under the MV Act is not maintainable. To substantiate his contention that there is no use of motor vehicle, learned advocate has relied upon the A.D. Report. Further, the learned advocate for the appellant has submitted that the accident was caused due to the negligence on the part of the deceased himself or of the electricity company. It is clarified that however, the Insurance Co. has not pleaded either before this Court or before the learned Tribunal with regard to non-joinder of electricity company as a party.

8. The learned advocate for the appellant has relied upon the judgment rendered by the Apex Court in the case of Mamtaj Bi Bausab Nadaf & Others v. United India Insurance Co. Ltd. & Others, reported in 2010 A