IMPORTANT POINT
Insurers are not liable for gratuitous passengers in goods vehicles under the old Motor Vehicles Act provisions, as clarified by the Supreme Court.

JUDGMENT :

1. In claim petition No.1225 of 1988, by judgment and award dated 27.2.2001, learned MACT, Panchmahal @ Godhra assessed compensation of Rs.2,50,000/- 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:-

2.1 On 10.11.1988 at about 11:15 a.m. near Tandi crossing on Limkheda Jhalod Highway with motor truck No.GRY 4634 due to rash and negligent driving driving of the original opponent No.1 turned turtle and due to which, deceased Jorjibhai Bhurabhai, who was travelling in said truck with their goods, died.

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.

3.1 Alternatively, it is argued by learned advocate Ms. Sneha Joshi that in case if it is believed that the deceased was travelling as gratuitous passenger in the goods carriage vehicle, the learned Tribunal ought to have passed order of pay and recover. She pressed into service judgment of Coordinate Bench of this Court in case of United India Insurance Company Limited Vs. Fatmaben Ismailbhai and others rendered in First Appeal No.1915 of 2006 and judgment of the Hon’ble Apex Court in case of National Insurance Company Limited Vs. Baljit Kaur, 2004(2) GLR 1071. She would further submit that in the situation on hand, whether the Act amended in 1994 would come into picture or whether the old Act would apply to the facts of the present case has been addressed by the Coordinate Bench of this Court in case of Oriental Insurance Company Limited Vs. Meraman Dana Harijan and others, rendered in First Appeal No.1736 of 2007, the decision arrived therein equally applies to the case on hand. She would further submit that when in the claim petitions, the evidence was recorded, the amended Act has come into force and in view of section 147 of the MV Act, 1988 came in force from 14.11.1994, if a person is travelling in a goods vehicle along with belongings, the insurance company cannot escape from liability to pay compensation. She would further submit that all these issues are not properly appreciated by the learned Tribunal.

3.2 Upon above submissions, learned advocate Ms. Sneha Joshi prays to allow this First Appeal and the fasten the liability upon the insurance company in addition to liability of driver and owner of the offending vehicle to pay comp