NATIONAL INSURANCE CO LTD Vs. LAKHUBEN PUNABHAI VAGHARI

JUDGEMENT

(1.) Through this common judgment, we propose to dispose of five First Appeals, namely, First Appeal Nos.338, 339, 340, 341 and 342 of 2006, all of which ..................................................... Whether Reporters of Local Papers may be allowed to see the judgment" Yes have been filed by the appellant Insurance Company against the common judgment and award of the Motor Accident Claims Tribunal (Main), Ahmedabad (Rural) dated 20.9.2005, in M.A.C.P.Nos.942, 943, 944, 945 and 946 of 1998. Since these appeals, arise out of the same accident, the factual matrix is the same in all the cases.

(2.) It is stated that the accident took place on 19.5.1998 at about 1.30 P.M. A truck No.GJ-4U-9286 was being driven by its driver on the road going from Vataman Cross Road to Dholer. As per the case of the claimants, on the aforesaid date all the deceased persons, namely, Ramubhai Punabhai, Savaben Ramubhai, minor Tiniben, Rameshbhai Chaturbhai and minor Vijaykumar Rameshbhai, were going alongwith their goods in the aforesaid truck from Vataman Cross Road to their village Buranpur. Due to the rash and negligent driving of the driver of the truck, while over taking one tractor going ahead, the truck turned turtle and the accident took place. All the persons who had boarded the truck from Vataman Cross Road came under the truck and sustained severe injuries, which proved to be fatal. Claim petitions were filed by the legal heirs and representatives of the deceased persons. The written statements were filed by the present appellant as the insurer of the offending truck in all the claim petitions, denying the averments and allegations made therein and disclaiming its liability to pay the compensation. Issues were framed by the M.A.C.Tribunal and after examining the oral and documentary evidence on record, the M.A.C.Tribunal came to the conclusion that the driver of the truck was negligent in causing the accident and resultant death of the deceased persons. Further, it was found that the deceased persons were travelling in the truck alongwith their goods and as such, they were not gratuitous passengers. The owner of the truck and the Insurance Co. were held to be jointly and severally liable since the truck was found to be insured at the time of the accident. The M.A.C.Tribunal awarded compensation to the tune of Rs.1,93,000/- in M.A.C.Petition No.942 of 1998, Rs.1,93,000/- in M.A.C.Petition No.943 of 1998, Rs.1,50,000/- in M.A.C.Petition No.944 of 1998, Rs.1,93,000/- in M.A.C.Petition No.945 of 1998 and Rs.1,50,000/- in M.A.C.Petition No.946 of 1998.

(3.) In the present appeals, the appellant has taken a number of grounds but only two grounds have been pressed before us in support of the appeals. We have heard learned counsel for the appellant Shri Sunil B.Parikh and have gone through the material on the record. Firstly, it has been contended that the M.A.C.Tribunal erred in appreciating the FIR and panchanama at Exh.36 and 37 in which it is clearly mentioned that the truck was fully loaded with fertilizer and the persons travelling in the truck were picked up and seated in the truck from the road and therefore, there is no question of their travelling alongwith their goods in the truck. Secondly, it has been contended that the M.A.C.Tribunal has erred in appreciating the fact that there was no specific evidence to the effect that the passengers were travelling alongwith their goods, as they had not hired the entire truck. There was no documentary evidence such as receipt of goods, consignment note, receipt of fare etc. and therefore, the conclusion arrived at that the deceased persons were traveling in the truck alongwith their goods, and were not gratuitous passengers, is not supported by any evidence.