JUDGMENT :

Sandeep N. Bhatt, J.

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the present appellants, who are the original claimants, being aggrieved and dissatisfied with the judgment and award dated 15.11.2011 passed by the Motor Accident Claims Tribunal (Main), Narmada at Rajpipla in Motor Accident Claim Petition No. 18 of 2010, by which the Tribunal has awarded Rs.3,30,900/- with 9% interest per annum to the claimants holding Respondent No. 1 (owner of the vehicle) liable for the same, Respondent No. 2-insurance company is exonerated by the Tribunal.

2. Brief facts of the case are as under:

2.1 On 20.04.2009 at bout 7:30 p.m., the deceased who was father of the present appellants-claimants, was returning to his home by driving his tractor bearing registration No. GJ-6-AP-6582 and at the scene of accident, the tractor found turned turtle and deceased Bhanabhai died on the spot. It is the case of the claimants that at the time of accident, deceased was aged about 33 years old and was earning Rs.3,200/- per month by driving tractor, which is in the ownership of opponent No.1. It is further the case of the claimants that the deceased was possessing valid driving licence. On account of sudden death of father of applicants and also, as the mother has also died prior to the accident, the claim petition is filed through guardian and best friend of claimants viz., Kamajibhai Naranbhai Tadvi as claimants were minor at that time. Claimants have claimed Rs.4,38,836/- by way of compensation from opponent No. 2-owner and opponent No. 2-insurer of the vehicle. In the claim petition, opponent No. 1 and 2 have served with the notice. Opponent No.1-owner of the vehicle was not appeared before the Tribunal or filed any written statement and exparte order is passed to proceed against the opponent No.1. Opponent No. 2 has filed written statement at Exh.14.

2.2 The application is filed under Section 163-A of the Motor Vehicles Act, 1988 by the claimants for review of the award. After recording the evidence on behalf of the claimants who is examined at Exh. 12-Kamjibhai Narayanbhai Tadvi and also after considering the documentary evidence like FIR and Panchnama, the Tribunal has come to the conclusion that Rs.3,26,400/- plus funeral expenses and loss to estate under which Rs.2,000/- towards Rs.2,500/- respectively is required to be awarded and total expense is Rs.3,30,900/- which is awarded with 9% per annum interest from the date of application. The Tribunal has also directed to recover it from the opponent No. 1-only and opponent No. 2-Iffco Tokio General Insurance Co. Ltd. is directed to be exonerated from its liability.

2.3. Being aggrieved and dissatisfied with the above finding on the aspect of quantum as well as liability of the Insurance Company, the present First Appeal is preferred by the original claimants, who are appellants before this Court.

3. Learned advocate for the appellants Mr. M.T.M. Hakim has submitted that the Tribunal has erred in exonerating the Insurance Company from its liability as looking to the policy itself, it transpires that policy Exh. 23 that the Insurance Company has collected the premium of Rs.100/- towards personal accident of owner-cum-driver and has also collected Rs.25/- as premium towards legal liability to the driver (IMT-28) and therefore, the Tribunal has not properly appreciated the document of policy at Exh. 23 and in view of various judgments of this Court as well as Hon'ble Supreme Court, more particularly, the claim petition filed under Section 163-A of the Motor Vehicles Act, 1988, the liability of the Insurance Company could be fastened and learned Tribunal has committed an error in exonerating the insurance company from its legal liability. In support of this contention, learned advocate for the appellants have relied upon the judgments (i) reported in 2014 (1) GLH 212 in the case of Smt. T.S. Shylaja v. Oriental Insurance Co. & Anr., (ii) (2020) 7 SCC 38