BAI DAHIBEN Vs. JESINGBHAI BIJALBHAI

JUDGEMENT

(1.) THESE two appeals arise out of Motor Accident Clajm Petition Nos. 17/1971 and 18/1971 filed by the claimants arising out of a single accident which had taken place near Ankleshwar on Rajpipla Road at about 11.00 p.m. on 27-4-1971 in which truck No. GTB 6177 belonging to opponent Np. 2 insured with opponent No. 3 and driven by opponent No.1 wasinvolved. In both these claim petitions, the Motors Acciclents Claims Tribunal, Broach District at Broach (hereinafter referred to as 'the tribunal'), by his judgment and award dated November 21, 1972 has awarded an amount of Rs. 7, 800/- in claim petition No. 17/71 and Rs. 1,000/- in claim petition No. 18/71 and ordered the opponent No. 1 to pay the aforesaid amount to the respective appellant with interest at the rate of 6 percent p.a. from the date of the petition and proportionate costs thereon. However, both the claim petitions against opponent Nos. 2 and 3 were dismissed by the Tribunal with costs, Therefore, the respective appellants have filed these two appeals on the ground that the award should have been passed against respondent Nos. 2 and 3, that, is the owner of the truck and the insurance company. The claimants are: not claiming any additional amount of compensation in both these appeals. Mr. Desai, learned Counsel for the appellant stated that he does not press his claim for any additional amount of compensation in this appeal, but his. only submission is that the award should have been passed against all the respondents.

(2.) SO far as the question of negligence of the driver of the vehicle is concerned, it has been held to be proved in this case and there is no appeal or cross-objections against the said finding of the Tribunal and, therefore, the said finding has become final.

(3.) MR . V.J. Desai, the learned Counsel for the appellant has mainly concentrated in this appeal on the question that the deceased Naranbhai was carried in the truck not as a gratuitous passenger but it was for hire and reward and the deceased had agreed to pay a sum of Rs. 2/- to the driver and/or cleaner of the truck. On this question we have got the evidence of Dahiben Keshavbhai, Ex. 32, who has stated in paragraph 1 that the deceased had agreed to pay Rs. 2/- as hire charges to the truck driver for the baskets with him. But her evidence would not be very material because she could not have any personal knowledge about the payment to be made by the deceased. The important evidence on this point is of one Bhikhabhai Bhudarbhai, Ex. 39. This witness has stated that he was travelling by the truck in question from Ankleshwar alongwith Naran Karsan and according to him Naran Karsan had told him that he had agreed to pay the freight of Rs. 2/- to Rs. 3/- to the driver for the baskets carried with him. In the cross examination he has denied that he had no talk with Naranbhai in the truck. He has further stated that he had not paid any hire charges to the driver of the truck in question. It appears from the cross-examination of this witness that no question was put to him that deceased Naranbhai had not agreed to pay Rs. 2/- or Rs. 3/- to the driver or the cleaner of the truck. There is evidence of Jesingbhai Bijalbhai Ex. 53, who was the driver of the truck in question. In paragraph 2 of his evidence he has stated that Naranbhai Karsanbhai und Bhikhabhai Bhudarbhai were standing near the cross road of Ankleshwar. They entreated him to give them a lift in the truck. He refused to give them any lift and therefore they entreated the cleaner of his truck to give them a lift in the truck stating that no vehicle would then be available to them for going to their village. He further stated that the cleaner then gave them a lift in the body part of the truck. He has further stated that he had not charged any fare from Naranbhai and Bhikhabhai for giving them lift in the truck nor had they agreed to pay any fare to him or to the cleaner for the same. In cross-examination in paragraph 4 he has denied that Naranbhai was carrying baskets with him and that he had agreed to pay Rs. 2/- as freight to him for carrying the same in the truck. He has further stated that he did not know as to what talks had transpired between the cleaner and Naranbhai. It is difficult to understand why a truck driver who was returning empty to Rajpipla from Ankleshwar would allow any person to travel by his truck without any charges. It is difficult to accept the story of the driver that the cleaner of the truck had allowed them to board the truck without any payment. In fact, if the cleaner of the truck had allowed them to board the truck against the desire of the truck driver, the truck driver would have objected to it. In fact, it appears from the evidence on the record that initially the truck driver had objected to these persons being given lift in the truck, but ultimately, it appears that at the request of the cleaner, the truck driver might have agreed to allow these persons to board the truck. Bhikhabhai has stated in his deposition that Naranbhai had told him that he had agreed to pay freight charges. Whether the amount was paid to the cleaner or not could have been verified from the evidence of the cleaner of the truck but the cleaner of the truck has not been examined in the present case. He was the best person to testi'y whether the amount was recovered by him from Naranbhai, on behalf of himself and the driver of the truck. In view of the fact that the driver had carried the passengers in the truck and in absence of evidence of the cleaner of the truck a presumption can be safely drawn that the cleaner and the driver of the truck have been paid by Naranbhai. The presumption can be drawn safely in view of the fact that if no amount was paid to the cleaner, on behalf of the driver and the cleaner, the driver would have certainly objected in carrying the said passengers by giving them lift and would have refused to proceed further. In fact, the driver had first refused to carry them, but, it appears that on the suggestion of the cleaner they were carried in the truck. Therefore, it should be presumed that the amount was paid to the cleaner on behalf of both of them. I, therefore, hold that Naranbhai was carried in the said truck for hire or reward and he was not a gratuitous passenger and he cannot be said to be an unauthorised passenger or person travelling in the truck. It is therefore, clear that deceased Naranbhai was a paid passenger in the truck in question at the time of accident.