NATIONAL INSURANCE COMPANY LTD Vs. HUMNBHAI CHHIPABHAI CHAUDHARI

JUDGEMENT

(1.) THESE appeals are filed by the National Insurance Co. Ltd., Surat, against the judgment and order dated 23-6-1,978 passed by the Accidents Claims Tribunal No. 1, Surat (hereinafter referred to as 'the Tribunal'), in Motor Accidents Claims Petitions Nos. 104 of 1977, 105 of 1977 and 121 of 1977 which arose out of the common accident. The Tribunal has disposed them of by a common judgment, and we have also, therefore, heard these appeals together and disposed of them by this common judgment.

(2.) THE short facts leading to these appeals are that on 5-5-1977 at about 3-30 p.m. near village Uncha Mala, Taluka Vyara, District Surat, the accident in question occurred as a result of which three persons, viz. (1) Chhitubhai, a boy aged 17 years, (2) Jagdish, a boy aged 5 years, and (3) Maniben Khalpabhai, died.

(3.) MR . R.N. Shah, learned Advocate for the appellant in all these appeals has challenged the judgment and order of the Tribunal only on the ground that all the three deceased persons were the gratuitous passengers of the tractor which met with the accident and, therefore, they were not entitled to any amount of compensation under the Motor Vehicles Act, 1939. Mr. Shah has particularly drawn our attention to the following observations made by the Tribunal in paragraph 9 of its judgment: ....I hold that, in the instant case, there is sufficient material on the record to show that, all the three deceased were in the trailer attached to the tractor, at the relevant time driven by opponent No. 1, and this accident occurred. However, we drew the attention of Mr. Shah to the following ultimate observations made by the Tribunal in paragraph 15 of its judgment: ....There is no evidence worth the name, on the record, to show that, the deceased were the passengers either, for hire or reward, without hire or reward, travelling by the trailer attached to the offending tractor. When the defence has been taken by the Insurance Company, opponent No. 3, that the deceased were the passengers carried by gratia, it is for that Company to prove that fact, like any other fact. No doubt, in view of the aforesaid two inconsistent findings of the Tribunal we permitted Mr. Shah to read the evidence and point out whether there is any evidence to show that the deceased were the passengers travelling in the tractor in question. Mr. Shah was not able to point out any evidence worth the name except some questions put to the eye-witness in cross-examination.