UDAYSHANKAR BHAI Vs. HEIRS AND LEGAL REPRESENTATIVES

JUDGEMENT

(1.) THIS appeal by the owner of the Motor Truck bearing No. GTP 4051 involved in the accident, is directed against the judgment and award dated August 23, 1977, passed by the Motor Accident Claims Tribunal, Junagarh District at Junagarh (hereinafter referred to as the Tribunal) in M.A.C. Petition No. 68A of 1974.

(2.) RESPONDENTS Nos. 1(1) to 1(8) (hereinafter referred to as the "claimants") are the heirs and legal representatives of deceased Rabari Ala Rama (hereinafter referred to as the "deceased"), who had filed the aforesaid petition claiming compensation for the death of the deceased, who was killed in a vehicular accident, which took place on Porbandar-Jamnagar High-way on November 13, 1972. None of the claimants was present, at the time when the accident occurred and, therefore, they did not have any personal knowledge regarding the manner in which the accident occurred. It, however, appears that respondent No. 2 ("driver" for short) an employee of the appellant, who was driving truck, had lodged First Information Report ('F.I.R.' for short) at the Bagavadar Police Station in regard to the accident. In this F.I.R. the driver had stated that the accident occurred at about 5-30 P.M. on November 13, 1972. In this F.I.R. the driver had stated that he had taken unauthorised passengers in the aforesaid truck bearing No. GTP 4051, and while he was driving the truck in rash and negligent driving manner, one of the passengers fell down from the truck and was killed. It appears that it was on the basis of this F.I.R. that while making the application in the prescribed form. The claimants had, while giving the details of the accident, stated in column 10 that the deceased was going to Porbandar in public career bearing No. GTP 4051, which was driven in rash and negligent manner by the driver and that when the truck came near Bharvada village, the deceased was thrown off the truck and he received fatal injuries and died on the spot. This statement obviously was made on the basis of what had the driver stated in his F.I.R. lodged at the police station, because as pointed out above, the claimants did not have any personal knowledge about the manner in which the accident occurred. The claimants claimed compensation of Rs. 40,000/- under various heads from the appellant and the driver of the truck and prayed that respondent No. 3 Insurance Company with which the truck was insured be made liable to pay compensation payable by the owner of the truck to them. The appellant that is the owner and respondent No. 3 Insurance Company resisted the claim petition. The main defence of the appellant was that he had instructed his driver not to allow any passengers to travel by the truck and he was also told that the truck was to be used only for transporting goods. The case of the appellant was that the deceased forcibly sat in the truck and he jumped off the truck after he travelled some distance. It was alleged that the deceased received injuries not on account of any rash and negligent driving on the part of the driver but because he jumped off the truck. It was, therefore, contended that the owner of the truck was not liable to pay any compensation or damages to the claimant for the death of the deceased.

(3.) THE Tribunal on appreciation of the evidence on record held that the accident was caused as a result of rash and negligent driving on the part of the driver of the truck and that claimants were entitled to claim compensation for the death of the dsceased, who died as a result of the fatal injuries received in the accident. The Tribunal held that the appellant and the driver were liable to pay compensation of Rs. 21,000/- to the claimants, but since the insurance policy did not cover passenger's risk, the Insurance Company was not liable to pay the said compensation to the claimants. In the result, while holding the appellant and respondent No. 2 liable to pay compensation of Rs. 21,000/- to the claimants, the Tribunal rejected the claim as against the Insurance Company. The appellant, who is caner of the truck, being aggrieved by the award of the Tribunal has preferred this appeal.