Decided on December 06,1979



D.H.SHUKLA, M.K.SHAH - (1.) The appellants who are the original claimants filed claim petition No. 95 of 1974 before the Motor Accident Claims Tribunal of Kaira at Nadiad claiming compensation in respect of the death of their son Balabhai arising out of an accident which occurred in the early hours of 15th May 1974 near Andharia Chakla in village Napad. The claimants alleged that these were the days when there was railway strike and the Government bad permitted goods carrying vehicles to carry passengers therein. Claimant No. 1 who is the father of the deceased and other had been returning from a marriage party to Kaira travelling in a trailor attached to tractor No. GJS 3972 belonging to opponent No. 1 Patel Shivabhai Kashibhai and it was driven by his driver opponent No. 2 patel Kantibhai Somabhai and was insured with opponent No. 3 insurance company. It was the case of the claimants that on account of a rash and negligent act of driving on the part of the driver of the said tractor the trailor attached thereto turned turtle and the deceased and other persons sustained injuries. The deceased was removed to the Civil Hospital at Kaira. The doctor in charge pronounced him dead. The claimants therefore filed the said claim petition claiming a total amount of Rs. 39 500 as compensation from the three opponents.
(2.) It was contended by opponent No. 1 that the tractor was entrusted by him to his driver opponent No. 2 for the purpose of doing agricultural work with a specific instruction that he should not make use of it for any other purpose and that opponent No. 2 without permission of opponent No. 1 carried a marriage party in the trailor which was attached to the tractor and therefore the said opponent viz. opponent No. 1 was not liable for any consequences of the accident which happened while the tractor was being driven in this fashion by opponent No. 2. Opponent No. 2s case was that he was driving the tractor as a driver of opponent No. 1 doing agricultural work with the tractor and that in order to plough some land at Kaira at the instance of opponent No. 1 he had brought the tractor to Kaira with specific instruction that the tractor was to be taken back after finishing agricultural work. However when the claimants and others approached him and requested him to take the marriage party in the trailor representing that there was great hardship in going by train or by bus and also representing that they would not pass on the information to opponent No. 1 with regard to the said use of the tractor for them the said opponent agreed to carry the marriage party and while he was returning with the said party for no fault of his the tractor and the trailor got separated because of the breaking of the joint rod resulting in the accident. It was the defence of the insurance company that opponent No. 1 allowed the tractor and the trailor to be used for a purpose other than the one provided in the contract of insurance and thereby committed a breach of the conditions embodied in the policy of insurance and the insurance company was therefore not liable to indemnify the insured.
(3.) On the evidence led before him the learned District Judge constituting the Tribunal held that the accident happened because of a rash and negligent act of driving on the part of opponent No. 2 and though he held that the said opponent was in the employment of opponent No. 1 as his driver he came to the conclusion that the tractor was not being driven in the course of the employment and that the owner was therefore not vicariously liable for the tortious act of his driver opponent No. 2. With regard to the quantum he awarded a sum of Rs. 21 0 as compensation to the claimants and ordered that the same shall be recoverable with interest at 6% per annum from the date of the application till realisation together with proportionate costs from opponent No. 2 alone and not from opponent No. 1 or opponent No. 3. This award passed by the said Tribunal on 17th March 1975 is challenged by the claimants with regard to the quantum of compensation awarded as also with regard to the finding that opponents Nos. 1 and 3 are not liable for the same. The appellants are the original claimants and the respondents are the original opponents. .. ... ... ... ... [ His Lordship after discussing the evidence held that Tribunal was partially in error in holding that the vehicle was not being driven by opponent No. 2 within the course of employment and in negativing the vicarious liability of the owner on that ground:] ;

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