JUDGMENT :

NISHA M. THAKORE, J.

[1.] The present appeal is filed at the instance of the appellant- ICICI Lombard General Insurance Co. Ltd. (hereinafter to be referred as “Insurance Company”), under Section 173 of the Motor Vehicles Act, 1988 (hereinafter to be referred as “the Act of 1988”), being aggrieved and dissatisfied with the judgment and award dated 30.06.2016 (hereinafter to be referred as “impugned judgment and award) passed by the Motor Accident Claims Tribunal (Aux.) & 4th Additional District Judge, Kheda at Nadiad in M.A.C.P. No.1037 of 2012.

[1.1] By the said impugned judgment and award, the Tribunal has partly allowed the claim petition preferred by the original claimant under Section 166 of the Act of 1988, holding the claimant entitled to recover sum of Rs.8,45,600/- with interest at the rate of 9% per annum from the date of filing of claim petition, till its actual realization with proportionate costs, from the original opponents jointly and severally. Hence, the present appeal has been preferred by the appellant–Insurance Company solely on the ground disputing its liability to pay any amount of compensation.

[2.] Considering the grounds raised in the appeal memo and the submissions made by learned advocate for the appellant, this Court, vide order dated 18.10.2016, had admitted the appeal. In an Interim Application for Stay preferred by the applicant/appellant- Insurance Company, this Court, vide order dated 18.10.2016, had stayed the impugned judgment and award, till final disposal of the appeal, on condition of deposit of entire award amount with interest and costs with the concerned Tribunal. This Court had also directed to disburse 30% of the deposited award amount in favour of the claimant and, had further directed to invest the remaining 70% of the amount in the fixed deposit scheme with any nationalized bank. The fixed deposit receipts were directed to be renewed from time to time and, were not permitted to be encashed till the final hearing of the captioned appeal. The interest accrued was permitted to be paid to the claimant.

[3.] The record suggests that notice of admission of appeal is reported to have been duly served upon the respondents herein. Learned advocate Ms. Chetnaben Joshi has appeared on behalf of respondent nos.1 and 2 through High Court Legal Services Committee. Considering the fact that the appeal is of year-2016 and, pending consideration, the appeal is peremptorily heard.

[4.] Mr. Tanmay B. Karia, learned advocate for the appellant- Insurance Company, has assailed the impugned judgment and award on the ground that the Tribunal failed to appreciate that indisputably the offending vehicle involved in the accident was a goods carriage vehicle and was therefore, meant for carrying goods only and not for carrying passengers either for hire or for reward. It was further submitted that seating capacity of the offending vehicle in the accident as indicated in the R.C. Book produced on record at Exh.34, was one, which is of the driver. He has further submitted that though the claimant has pleaded that the injured was travelling in the offending vehicle as owner of the goods, there is no iota of evidence on record to demonstrate that the injured was travelling with goods. Despite that, the Tribunal, merely on appreciation of the evidence of the claimant, in light of the FIR produced on record, has believed the case of the claimant that the injured was travelling with the goods. Learned advocate has, therefore, submitted that in absence of any evidence establishing the fact of the injured travelling with the goods, the case of the claimant was required to be treated as an unauthorized passenger travelling in the goods carriage vehicle. He has, therefore, submitted that there was breach of terms and conditions of the policy and, the Tribunal ought to have exonerated the appellant-Insurance Company from its liability to pay any amount of compensation.

[4.1] The attention of this Court was invited to