N.H.BHATT, J. -
(1.) THESE appeals arise out of the respective Motor Accident Claim Petition Nos. 149/76,191/76, 212/76, 248/76, 249/77 26/77 & 97/77 decided by the common judgment by the learned Motor Accident Claims Tribunal of Kheda at Nadiad. In these respective claim petitions Rs. 46,000/- Rs. 21,000/-, Rs. 57,000/-, Rs. 25,500/- Rs. 15,000/- Rs. 15,000/- and Rs. 4,050/- were awarded by the learned Tribunal as compensation. The first six out of these . seven claim petitions were filed by the unfortunate heirs of the victims of the fatal accident whereas the last claim petition being the Claim Petition No 97/77 was filed by Ranchhodbhai Janabhai Solanki, who fortunately survived that mishap. The accident in question had taken place on 30th April 1976 at about 7.45 p.m. in which the Truck bearing No. GTG 1979 driven by the common opponent No. 1 in all those claim petitions and belonging to the common owner the Gita Transport Company, the common opponent No. 2 in those claim petitions, had met with the mishap between Umreth and Dakore, about 2 kms. away from Umreth to be evact. The accident occured because the truck in question suddenly moved towards the right-hand side of the driver and violently dashed with a mango tree on that side resulting into serious injuries to six passengers carried in that truck, who ultimately succumbed to those injuries shortly thereafter. These passengers were taken by the truck by the driver from Umreth where he had halted break during his journey from Nadiad to Sevalia. The passengers requested the driver to give them lift and after initial reluctance the driver obliged them and as stated by Ranchhodbhai Solanki, the common witness of the claimants of these claim petitions tried together, by charging the hire charges. Even the common opponent No. 1 examined on behalf of the opponents, his evidence being Ex. 104 on the record of the Claim Petition No. 191/76 with which the six other claim petitions were consolidated, also stated in examination-in-chief itself that he had charged these passengers 45 paise each presumably because the passengers had boarded the vehicle at Umreth and were to get down at the nearest destination Dakore. We take judicial notice of the fact that Dakore is the next ordinary stage of carriages playing between Umreth and Dakore.
(2.) THE learned Tribunal passed the above mentioned Award in favour of the claimants, but exonerated the opponent No. 3, the Insurance Company on the ground that the Tribunal believed the passengers to be gratutious passengers, who were gracefully offered a lift by the driver on their persistant demands. Being aggrieved by the exoneration of the insurance company from the liability, the owner the original opponent No. 2 in these claim petitions have preferred the above mentioned First Appeals. On in the First Appeal No. 1203/77 arising out of the Claim Petition No. 191/76 the claimants have filed cross-objections praying for Rs. 19,000/- by way of compensation. The other claimants remained content with the amounts awarded to them by the learned Tribunal, though in all the claim petitions except the claim petition No. 249/76 the full claims put-forth in the claim petitions were not granted.
Mr. G.N. Desai, the learned Counsel appearing for the common-appellant of all these first appeals firstly contended that there was no acceptable evidence to prove the negligence of the driver and according to him this was a case of pure accident where the unfortunate collision of the truck with the mango tree on the right side was almost inevitable. Reliance in this connection was placed on the driver's evidence, who said that at that time and placed there had come from the opposite direction i.e. from Dakore side a truck with headlights on and finding that truck was rushing towards the truck in question moving on the correct side and at most moderate speed, the driver had no alternative, but to alter his truck towards the right-hand side and while he was in this process of steering towards right, the on-coming truck had dashed on the near side with the result the driver sustained some injury on the head, consequently lost control over the steering wheel and the truck dashed with the mangos tree and ultimately landed into the nearby ditch. The Tribunal disbelieved this whole story depicted by the driver firstly because it rested in the interested testimony of the driver, who had showed his interest to support his masters and secondly because the injured witness Ranchhodbhai, who had put forth a modest claim only of Rs. 9990/- flatly denied the suggestion put to him. The Panchnama Exh. 37 on the record of this case which was taken on the record of other claim petition and which was summoned by us, shows that this truck had practically a frontal collision with the tree so much so that the front cabin had been totally smashed and its left side of the body also was considerably damaged. Had the initial impact been on the back left side of the truck in question, the extensive damage would have been on that side, but we find in the Panchnama Exh. 37 that all damages is noted to the front side of the truck. Had the truck in question been tossed because of the on-coming truck, the collision with the two mangos trees, not one, and almost total smashing of the entire front portion would not have been there. The learned Judge, therefore rightly held that this particular defence version was nothing but the figment of the imagination of the opponent No. 1. We would add by saying that this is one of those uncommon cases where circumstances speak for themselves. We do not think any more arguments can be advanced or entertained on this point.
(3.) THIS brings up to the major point of law canvassed by the appellants and attempted to be set by Mr. B.R. Shah for the Insurance Company. The ground that weighed with the learned Tribunal in exonerating the Insurance Company is that the persons who met with the unfortunate deaths were gratutious passengers. We find ourselves unable to agree with this conclusion reached by the learned Tribunal. No doubt, there is no mention in the claim petitions that the passengers had paid hire charges or they were gratutious passengers, but this non-mention is innacuous by itself. From that we cannot deduce a one-side inference that story about payment of charges deposed to by Ranchhodlal and the driver must a belated thought on their part. Not only Ranchhodlal, but even the driver categorically stated that each of those persons was charged 45 paise for the lift from Umreth to Dakore. Mr. B.R. Shah for the Insurance Company urged that some of the claimants had not boarded from Umreth. He said, one Mr. Ramanlal, the deceased, had hearded the truck from Nadiad in his capacity ask the repairer of the owners of the truck required to be transmitted to Sevalia to repair some machine of the truck owner's sister concern. No doubt, in the petition the case was put forth to that effect, but there is no evidence which can be acceptable by even the preponderance of possibility which would support this part of the story. The driver disclaims that Ramanlal had boarded the truck from Nadiad. The widow of the deceased Bai Kantaban, Exb. 77 obviously cannot have any personal knowledge. Similarly, the employee of the deceased, Jivansing Babu Singh, Exh. 91 also does not seem to be speaking of the deceased's departure from Nadiad for Sevaliay, by the truck. He has no personal knowledge about it. All he says in that the deceased has gone to Sevaliya, but when the driver, who has personal knowledge speaks otherwise, it is not possible for us to accept that statement. Similar is the case about deceased Lalitbbai, whose Widow Jadiben and her children who had filed the Motor Accident Claim Petition No. 26/77. So about Rancbhodbhai, who does not specifically state that he had boarded the truck from his village. It is well-neigh possible that he might have come to the Umreth Bus Stand to catch the bus to Dakore and finding that buses were not available, he along-with other passengers took an opportunity to travel upto Dakore by the ill-fated truck.;