D.A.MEHTA - (1.) This is an appeal filed by the appellant-Insurance Company u/s.173 of the Motor Vehicles Act,1988 (for short 'the Act') against the judgment and award dated 5.7.1996 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar in Motor Accident Claim Petition No.354 of 1992.
(2.) On 28.4.1992 at around 4.00 p.m. the accident involving truck no.GTZ 949 took place on Talaja-Mahuva road, near Borda village. The said vehicle turned turtle resulting in death of one Vitthalbhai Laxmanbhai. The original claimants, respondent nos. 1 to 4 herein, filed the claim petition seeking compensation of Rs.3,20,000.00. After considering the evidence on record and hearing all the parties who appeared before the Claims Tribunal, an award of Rs.2,60,000.00 with interest came to be made.
(3.) Mr.P.V.Nanavati, learned Advocate appearing on behalf of the appellant-Insurance Company submitted that the accident took place in 1992 i.e. before the amendment by the Amending Act of 1994, and hence, taking into consideration the provisions of Section 147 of the Act, as they then stood, the appellant Insurance Company was wrongly held to be liable by the Claims Tribunal alongwith the owner of the vehicle. It was submitted that the deceased was not travelling in the truck as a labourer, but was either a gratuitous passenger or simply an unauthorized passenger. It was further submitted that taking into consideration the deposition of the father of the deceased viz. Lakshmanbhai Jivabhai, respondent no.3 herein, at the most the deceased could be treated as a casual labourer who was not permanently employed and the accident took place when the deceased had travelled in the truck to Khodiyar temple for darshan and offering of 'Lapsi' to fulfill the vow of one Shri Ramsingbhai, who was a relative of the owner of the truck. Mr.Nanavati further submitted that even if for the sake of argument it was accepted that the deceased was a labourer, yet at the time of the accident, as the truck was not used for the purpose of its business viz. purpose of carting, the Insurance Company could not be held liable as the deceased was not travelling in the vehicle in the course of his employment. It was submitted that once the job of loading and unloading has been completed and the truck was thereafter plied for returning to the owner's place, and if during such a trip gratuitous or unauthorized passengers were carried it would be a distinct purpose which was not permissible in law and the Insurance Company could not be fastened with the liability to pay compensation. Mr.Nanavati further submitted that the provisions of Section 147 of the Act did not recognise dual purpose and it was necessary for the claimants to prove that the death occurred or arose out of and in the course of the employment. In this context, Mr.Nanavati relied upon the decision of the Supreme Court in the case of New India Assurance Company Limited Vs. Asha Rani and others 2002(10) SC 162. It was further submitted that the claimants had failed to lead any evidence, oral or documentary, as to the nature of the user of the truck i.e. whether the truck was used for carting or not. Similarly, whether the deceased was a labourer or not, and even if he was a labourer, whether he was a labourer on this truck viz. GTZ 949 had not been proved by any documentary evidence and the Tribunal had committed an error in law in placing reliance upon deposition of the father of the deceased. That the aforesaid facts were within the personal knowledge of the owner of the vehicle viz. Koli Chitharbhai S., respondent no.6 herein, who had chosen not to appear in person or place any evidence on record and thus, the contention was, an inference should be drawn against the owner and the Insurance Company should be exonerated.;