SAMJUBEN BHIKHABHAI Vs. KOLI LALJI NAKU

JUDGEMENT

(1.) This appeal under Section 110-D of the Motor Vehicles Act is directed against the award passed by the Motor Accident Claims Tribunal, Bhavnagar in M.A.C. Case No. 64 of 1977 decided on 2.2.1979 whereby it has been ordered that the claimants may recover a sum of Rs.39,000.00 from the opponents nos.1 and 2, i.e. respondents nos.1 and 2 in this appeal. The interest has been granted at the rate of 6% per annum from the date of application till realisation with proportionate costs. The application was dismissed against the Insurance Company and directions have also been issued for apportionment of the total amount to the respective applicants-claimants.

(2.) On 16th April 1977, deceased Bhikhabhai was travelling in a public career truck with an aluminium container containing 2 kg. of Ghee therein to be sold at Mahuva. The truck driver was paid the amount of hire for the goods as well as the travel of the deceased himself. The respondent no.1 herein was the driver and the allegation is that he was driving the vehicle in a rash and negligent manner at excessive speed. The truck went off the road and turned turtle. The deceased was thrown off, he received injuries and was found dead on the spot. The appellant no.1 is the widow of deceased Bhikhabhai and appellant no.2 is the mother, while appellants nos.3, 4 and 6 are daughters of the deceased, appellant no.5 is the son of the deceased. The respondents nos.1 and 2 are the driver and owner of the vehicle respectively and the respondent no.3 is the Insurance Company. The vehicle was insured with the New India Assurance Co.Ltd., i.e. respondent no.3. The claimants filed the claim for Rs.80,000.00 as compensation and stated that the deceased was earning Rs.300.00 per month and at the time of accident, the respondent no.1 was in the employment of the respondent no.2. This claim as was filed by the claimants before the Motor Accident Claims Tribunal was opposed on behalf of the respondents by filing written statement at Exh.13. It was denied that the deceased was travelling in the vehicle No.GTS 6327 on 16th April 1977. It has also been denied that he was carrying aluminium container containing Ghee. The stand has been taken that the respondent no.1, i.e. driver told the deceased that there was no room in the truck, but the deceased tried to get into the truck through the side way and in this process, he fell down because of his own negligence. The allegation of rash and negligent driving has also been denied. It has also been denied that the truck was being driven at a high speed. It has also been denied that the deceased was earning Rs.300.00 per month and it has been stated that the claim of Rs.80,000.00 was exaggerated. The Insurance Company also filed reply at Exh.22 and its case is that the driver was never negligent and rash in driving the vehicle and the claim is an exaggerated one. Further, that the Insurance Company was not liable and the liability of the Insurance policy was limited and further that deceased Bhikhabhai was unauthorised passenger and, therefore, the Insurance Company was not liable for payment of compensation and therefore, the claim be dismissed.

(3.) By the impugned order dated 2nd February 1979, two claims, i.e. M.A.C. Cases Nos.64 of 1977 and 66 of 1977 have been decided with regard to the same accident, however, the present appeal has been filed only by the claimants of Claim Case No.64 of 1977 and therefore, it is not necessary for this Court to deal with the facts with regard to the Claim Case No.66 of 1977 and the challenge against the award is considered only with regard to the claim in Claim Case No.64 of 1977.