LAL MOHAMMED Vs. KALU

JUDGEMENT

(1.) O(sic)e Lal Mohammed and his wife filed a claim before the Motor Accidents Claim Tribunal (hereinafter to be called "the Tribunal") on the allegation that their son Makbul who was travelling in Truck No. RJY 1754 on 16 -4 -69 met with an accident while the truck was descending at Narated Ghati when it over turned Makbul received injuries and after sometime died. Respondent No. 1 Kalu was said to be driving the vehicle which was owned by respondent No. 2 Dhulji, Respondent No. 3 the General Assurance Society Ltd. was the insurer Rs. 15000/ - were claimed as compensation on account of the untimely death of Makbul. Respondents countered the allegations. It was not disputed that the truck belonged to respondent No. 2. It was also admitted that the truck was insured with respondent No. 3. It was however denied that the truck was driven rashly or negligently. It was also denied that respondent No. 1 was the servant and in the control of respondent No. 2 at the time of accident the plea was that the truck was given on hire to the Public Works Department and that respondent No. 1 was in their service.

(2.) On the pleadings of the parties ten issues were framed. Under issue No. 1 it was held that at the time of accident Truck No. RJY 1754 was being driven by respondent No. 2. Under issue No. 2 it was held that respondent No. 1 was negligent and on account of his negligence this accident occurred. Under issue No. 3 it was held that deceased Makbul was 20 years of age. Under issue No. 5 it was held that though the truck remained on hire with the Public Works Department upto 14 -4 -69, there was no proof that it was on hire on 16 -4 -69 on which date the accident occurred it was also held that the driver was acting as a servant of respondent No. 2 and the effective control of vehicle was with the owner. The issue was therefore held against respondent No. 2. On issue No. 6 it was held that there was no contract to carry Makbul deceased on the truck for hire or otherwise and he was a mere volunteer and therefore respondent No. 2 was not liable for any compensation. Issues Nos. 7 and 8 were not pressed. On issue No. 9 it was held that Mukbul voluntarily travelled in the truck and in these circumstances respondent No. 3 the Insurance cannot be held liable for payment of compensation to him because of the proviso of Sec. 95(1)(b)(vi). The said issue was therefore decided in favour of respondent No. 3 and against the claimants Under issue No. 4 the compensation determined was Rs. 9000/ -. As a result of this the Tribunal by its judgment dated 17 -2 -73 awarded a decree for Rs. 9000/ - in favour of the claimants against respondent No. 1 only and dismissed it against respondents Nos. 2 and 3. Aggrieved, the claimants have come up in appeal to this Court.

(3.) The counsel for the appellants Mr. Mathur has pressed issues Nos. 4, 6 and 9 before me. No cross -objections have been filed by the respondents. The findings on their issues to the effect that the truck was owned by respondent 2 and that the accident took place because of the rash and negligent driving of respondent No. 1 have to be accepted. A faint effort was made by the counsel for the owner to persuade me to hold that the truck was not under the control of the owner or that it was not being driven negligently. The effort is futile. There is no explanation other than negligence as to why the truck should have over turned. The suggestion that the truck was under the control of the Public Works Department is not supported as there is no evidence that truck remained on hire under Public Works Department after 14th April, 1969 and even if it had been hired, it must in law be taken under the control of owner. I would therefore affirm the finding of the Tribunal on issues Nos. 2 and 5.