ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company, being aggrieved and dissatisfied with the judgment and award dated 07.12.2013 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in Motor Accident Claim Petition No. 1327 of 2008, by which the Tribunal has awarded compensation of Rs. 4,51,167/- with 9% per annum interest to the claimants, holding Opponents i.e.

owner / driver and insurance company liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 The deceased – Rajkumar Yadav was running his car repairing garage. On 08.05.2007 at about 4:00 pm., after repairing the Maruti Car bearing registration No.GJ-16-C-3498, when he took the trial of the said car, it got fired suddenly. As a result, Rajkumar received serious burnt injuries and during the treatment, he succumbed to the injuries on 10.05.2007. Therefore, the claim petition is filed to get the compensation of Rs. 6 lakhs with interest.

2.2 Notices were served to the opponents i.e. owner / driver and insurance company. Opponent No.2 – insurance company has filed its written statement at Exh. 11 by disputing all the averments made by the claimant in the claim petition and also disputed the liability.

2.3 The Tribunal has framed the issues. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarded compensation as noted above.

2.4 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by insurance company.

3. Learned advocate Mr. Vibhuti Nanavati for the appellant – original opponent No.2 – insurance company has submitted that the the Tribunal has materially erred in considering the deceased Rajkumar as third party while deciding the claim petition under Section 163A of the M.V. Act. He has further submitted that the risk of the deceased is neither covered statutorily under Section 147 of the Act nor under the policy of insurance of the case in question. He has also submitted that the vehicle was under reliability trial after repairs of mechanical fault. He has submitted that the deceased was neither an employee or paid driver of opponent No.1 nor any additional risk is covered under the policy. He has submitted that this appeal may be allowed.

4. Per contra, learned advocate Mr. Hakim for the claimants has submitted that the Tribunal has not committed any error while passing the impugned judgment and award. The Tribunal has rightly considered all the aspects of the matter and passed the impugned award. He has submitted that the Tribunal has rightly considered the fact that the accident has occurred by using the motor vehicle which is established by filing the FIR as well as Panchnama and by examining the witnesses. He has submitted that the Tribunal has rightly kept in view the decision of Hon’ble Apex Court in the case of Deepal Girishbhai Soni versus United India Insurance Company Limited reported in AIR 2004 SC 2107. He has submitted that the Tribunal has not committed any error in passing the impugned judgment and award. He has submitted that since the Tribunal has fixed the joint liability of the all the opponents, the Insurance Company may be directed to deposit the entire awarded amount before the Tribunal and the same may be directed to disburse to the claimants. He has submitted that as per the decision of Hon’ble Apex Court, the insurance company can pay the entire awarded amount and then can be recovered proportionately from the other tortfeasor(s). He has submitted that this appeal may be dismissed.

5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of ‘just and fair’ compensation. It is a beneficial legislation whic