FA/1430/1982 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1430 of 1982 With FIRST APPEAL No. 1910 of 1982 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= KANTILAL PITAMBARDAS PATEL - Appellant(s) Versus SHAKARIBEN WD/O NARAYANBHAI PUNJIRAM PATEL & 6 - Defendant(s) ========================================================= Appearance : MR RC JANI for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1 - 6. - for Defendant(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 14/03/2008 ORAL JUDGMENT 1. By way of First Appeal No. 1430 of 1982, filed by the original opponent no. 1-original owner, he has challenged the judgement and award dated 26.02.82 passed by the Motor Accident Claims Tribunal (Main), Mehsana in MACP No. 122 of 1979 whereby the Tribunal awarded a sum of Rs. 70,000/- by way of compensation payable to the original claimants by the original opponents nos. 1 & 2. FA/1430/1982 2/6 JUDGMENT 2. First Appeal No. 1910 of 1982 has been filed by the original claimants nos. 1, 2, 3 & 5 so far as disallowing claim against the respondent no. 3. 3. The original claimants had filed claim petition claiming compensation to the tune of Rs. 2,00,000/- in respect of the death of one Shri Narayanbhai on account of the accident which occurred on 21.11.78 near village Prirojpur, Taluka Kadi while the now deceased Narayanbhai who was working as the internal auditor of the Borisana Milk Producing Co-operative Society which was sending milk cans to Chilling Center at Kadi, was going to Kadi Chilling Center in a truck bearing no. GTC 5431 owned by original opponent no.1. The driver of the truck who is the original opponent no.2 diverted the truck through a 'Kachcha' road by which heavy vehicles cannot pass. The original opponent no.2 was driving the said truck in a rash and negligent manner and when the said truck passed through a turmeric tree, the now deceased Narayanbhai hit the turmeric tree as a result of which he fell down and sustained injuries FA/1430/1982 3/6 JUDGMENT on his chest and other parts of the body. The now deceased Narayanbhai was taken to hospital but he later on succumbed to his injuries. The original claimants who are the widow, children and mother of the now deceased Narayanbhai filed claim petition under the said circumstance. The Tribunal after hearing the parties passed the aforesaid award. 4. Mr. S.M. Patel, learned advocate appearing for Mr. R.C. Jani for the original opponent no.1 has contended that the Tribunal has committed an error in holding that the now deceased received injury as a result of the accident that occurred because of the negligent driving of the original opponent no.2. He has further contended that the Tribunal has erred in not appreciating the glaring fact that the now deceased Narayanbhai was being carried in the truck as a hirer himself being the member of the Milk Co- operative society and also its internal auditor accompanying the milk cans in the truck pursuant to the resolution of the co-operative society. He has submitted that therefore the Tribunal has committed an error in not considering the now deceased to be an FA/1430/1982 4/6 JUDGMENT employee of the society and thereby in deciding the issue. 5. None appears for the original claimants though being served. 6. Heard learned counsel for the parties and gone through the materials placed on record including the award of the Tribunal. The Tribunal in para nos. 7 to 12 has gone through the evidence in detail and has come to the conclusion that the original opponent no.1 and the now deceased Narayanbhai are equally responsible for the occurrence of the said accident and therefore the original opponent no.1 cannot be absolved from the liability to pay compensation in respect of the injuries sustained by the original claimant to the extent of the negligence of the original opponent no.1. 6.1 The contention of the learned advocate for the original opponent no.1 qua the now deceased being an employee of the Co-operative society cannot be accepted inasmuch as the said contention was not FA/1430/1982 5/6 JUDGMENT taken up before the Tribunal. The Tribunal in para 20 has very specifically observed that it is not the case of the appellants that the now deceased had hired the vehicle at the time of the accident or that the now deceased was either employed or insured by the truck owner. The Tribunal in para 41 has observed that it is not the case of the original claimants that the deceased Narayanbhai was the employee of the said co-operative society. 7. As regards the liability of the original opponent no.3-the point in question in First Appeal No. 1910 of 1982, this Court is of the view that the Tribunal is fully justified in holding that the insurance company cannot be held liable to indemnify the insured for the compensation. I am in complete agreement with the reasonings adopted and findings arrived at by the Tribunal and do not see any reason for interference in the award. 8. In the premises aforesaid, First Appeal No. 1430 of 1982 is dismissed. In view of the aforesaid reasonings and the order passed in First Appeal No. FA/1430/1982 6/6 JUDGMENT 1430 of 1982, First Appeal No. 1910 of 1982 is also dismissed. No order as to costs. (K.S. JHAVERI, J.) Divya//