MARIYAM JUSAB SMT Vs. HEMATLAL RATILAL

JUDGEMENT

(1.) The appellants herein were originally the applicants in Motor Accident Claim Application No. 60 of 1975 before the Motor Accidents Claims Tribunal Rajkot District at Rajkot wherein they had claimed compensation of Rs. 51 0 for the death of Jusab Ibrahim husband of applicant No. 1 and father of minor applicants Nos. 2 and 3 represented by their mother applicant No. 1. Their application was dismissed by the judgment and order dated 30/07/1977 against which they have filed the present appeal. Original opponent No. 1 was the driver of a water-tanker bearing No. GTX 5131 which was of the ownership of opponent No. 2. Opponents Nos. 3 and 4 are the parents of the deceased Jusal Ibrahim.

(2.) The applicants case is that deceased Jusab lbrahim and opponent No. 1 Hematlal Ratilal were friends and opponent No. 1 had taught the deceased driving of a heavy vehicle and had also promised him to secure a Government service for driving a water-tanker. It is their further case that opponent No. 1 used to give lifts to deceased quite often. On 20 at about 8-30 A. M. opponent No. 1 gave a lift in the water- tanker to the deceased. The water tanker was taken to total dam for filling in water and from there they were proceeding to Mandilkpur village to supply water to the villagers. At that time opponent No. 1 was driving the said water tanker and the deceased was sitting by his side in the drivers cabin. At a distance of about two furlongs away from Mandilkpur. village the accident occurred to the water tanker. The applicant severed that opponent No. 1 drove the water tanker at a high speed and in a rash and negligent manner. He took a sharp curve without applying the brakes and lost control over the tanker with the result that it capsized and its door got broken. The deceased was thrown off was crushed below the tanker and died on the spot. The applicants averred that the deceased was in good health and was engaged in running a Tonga from which occupation he was earning approximately Rs. 10.00 per day. He was also likely to get a service as a motor driver in near future. The deceased was at the time of the fatal accident to him about 29 to 3U years of age whereas the applicant No. 1 was aged about 23 years applicant No. 2 about 112 years and applicant No. 3 only four months old.

(3.) The opponents Nos. 1 and 2 contested the proceedings by filing their respective written statements at Exhs. 16 and 20 respectively. They have denied the averments made in the application and have denied any liability on their part to pay the compensation to the applicants. It is specifically denied that the water-tanker was being driven in a High speed and in a rash and negligent manner. It is also denied that oppo- nent No. 1 had taken with him the deceased in the water-tanker. According to opponent No. 1 while he was proceeding towards Mandilkpur deceased had requested him very insistently that opponent No. 1 should give him a lift in the tanker and therefore he had acceded to the request of the deceased. He was proceeding slowly. There was a curve at the road and a herd of cattle came from the opposite side on the right hand side that is to say on his left-hand side) and in order to avert an accident to the cattle he swerved the tanker to his right but in that act of his the main lift of the spring broke. He further found while he swerved the tanker to his right that by the side of the edge of the road there was a pit wherein he feared that the tanker might fall and therefore he again swerved the tanker to the left in which process he applied brakes but the tanker capsized on the road the door of it got opened the deceased was thrown out on the road and was crushed under the wheels in brief opponent No. 1 pleaded that it was an inevitable accident and that the accident had not occurred on account of his negligence.