Oral Judgment

1. This appeal has been preferred by the appellant against the judgment and award dated 25.01.2018 passed by the Motor Accident Claims Tribunal (Aux.), Visavadar in MACP No.191 of 2017.

2. Heard learned advocates for the respective parties.

3. The brief facts of the case are that at about 8:00 p.m., the deceased Dhirubhai @ Dhirajbhai Bhagwanbhai Rupapara was travelling in tractor bearing No. GJ-11-M-8358 from Bhutadi Village to Ambara Village on a public road when the tractor overturned. The accident occurred due to rash and negligent driving by opponent No.1, resulting in the death of the deceased.

4. The learned advocate for the appellant submitted that the learned Tribunal has passed the judgment contrary to the settled principles of law and has erred in drawing unwarranted inferences from the evidence on record; therefore, the present appeal deserves to be allowed.

5. On the contrary, learned advocates appearing for the respondent have strongly opposed the appeal and submitted that the learned Tribunal has rightly awarded just and proper compensation in view of the evidence available on record. It was contended that the judgment and award passed by the Tribunal are based on proper appreciation of evidence, and hence, no interference is called for. Accordingly, it was prayed that the appeal be dismissed.

6. Having heard the learned advocates for both sides and upon perusal of the record, it appears that the learned Tribunal dismissed the claim petition after recording evidence on the ground that although the involvement of the vehicle was proved, the claimant was sitting on the mudguard of the tractor and, due to rash and negligent driving by opponent No.1, the tractor overturned, resulting in the death of the deceased. The learned Tribunal further observed that though the deceased had expired due to vehicular injuries, the injury sustained while sitting on the mudguard was not covered under the insurance policy and therefore the claimants were not entitled to compensation from opponent No.3.

7. In light of the aforesaid observations, it clearly emerges that the involvement of the vehicle and the factum of death stand proved on record. Even assuming that the Insurance Company was not liable to pay compensation, the learned Tribunal was required to determine the quantum of compensation and pass an award against the tort-feasors, namely opponent Nos.1 and 2, being the driver and owner of the tractor. In terms of the liability of the insurer and insured, it is the duty of the Insurance Company to indemnify the award passed against the owner, subject to statutory defences. The learned Tribunal ignored this basic principle and, without assessing the quantum of compensation, straightaway dismissed the entire claim petition against all the opponents.

8. In view of the above, this Court is of the considered view that the learned Tribunal has committed an error in dismissing the entire claim petition. Hence, the judgment and award passed by the learned Tribunal are required to be quashed and set aside and the matter is required to be remitted back to the Tribunal for fresh adjudication after giving an opportunity to both the parties to lead evidence. The Insurance Company shall be at liberty to raise all permissible statutory defences, and the learned Tribunal shall decide the matter independently on its own merits, keeping in mind the provisions of the Motor Vehicles Act.

9. On overall appreciation of the evidence on record, the appeal is allowed. The matter is remitted back to the learned Tribunal, which shall decide the claim petition afresh after giving an opportunity of being heard to both the parties and decide the same on its own merits, without being influenced by the observations made by this Court, preferably within a period of six months from the date of receipt of this order. No order as to costs. The Registry is directed to return the Record and Proceedings, if any, to the learned Tribunal forthwith.