PANDURANG DAGDU GAYAKWAD Vs. PRABHAKAR DEVAJI MORA

JUDGEMENT

(1.) Original claimants have approached this Court by way of this First Appeal to challenge judgment and award of the Accident Claims Tribunal No. 1, Surat dated 4th April, 1979 passed in Motor Accident Claim Petition No. 57 of 1978 since the said petition has been dismissed on the ground that there was no negligence on the part of the driver of the offending vehicle in which the deceased was travelling.

(2.) The appellants are the parents of deceased Vaman Pandurang, who was working as Cleaner of Truck bearing Registration No. GTC-5912, which at the relevant time was driven by respondent no. 1. The said vehicle was owned by respondent no. 2 and it was insured with respondent no. 3. The accident took place on 14th May, 1977. On that day the deceased was sitting in the truck to go to Ankleshwar to bring the bricks. It was being driver by respondent no. 1. According to the appellants, the vehicle was being driver with excessive speed and to avoid collision with a truck coming from the opposite direction, respondent no. 1 took a sudden and sharp turn on the left hand side and also applied brakes. As a result of this, the deceased was thrown out of the vehicle since the door of the cabin got opened. The legs of the deceased hanged against the RCC pillars with steel bars and he sustained serious injuries. He was immediately removed to hospital but during treatment he expired. Thus, according to the appellants, the death was only on account of the rash and negligent driving of respondent no. 1.

(3.) In the appeal before this Court Ms. Rupa Rane, the learned advocate appearing for the appellants has contended that the Tribunal has erred in holding that there was negligence on the part of the deceased and on that ground rejecting the claim petition. She has further submitted that the material on record clearly shows that it was only because of the rash and negligent driving of respondent, the deceased was thrown out of the vehicle and his legs were injured seriously. She has further submitted that the Tribunal while holding respondent no. 2 vicariously liable for negligence of respondent no. 1, ought to have saddled the insurance company ? respondent no. 3 with liability to pay compensation to the appellants. She has also submitted that the amount claimed in the proceedings is just and proper and the Tribunal ought to have awarded the entire amount. Ms. Rane has also submitted that even when the Tribunal was of the opinion that there was negligence on the part of the deceased, it could have entertained the claim petition keeping in view the provision of section 110 [aa] of the Motor Vehicles Act, 1939, which is corresponding to section 167 of the Motor Vehicles Act, 1984 and could have awarded compensation under Workmen's Compensation Act, 1923.