M.B.SHAH, J. - (1.)This group of first appeals arises out of an unfortunate incident which has taken lives of four ladies and injured two persons on the spot at Village Kukarvada District Mehsana on 23/01/1977. One Tajmahmad hereinafter called as driver was working as a driver with the appellant-S. T. Corporation. The driver was serving under the Himatnagar Division of the appellant-Corporation in January 1977. He was required to take one painter in trainee bus of the S. T. Corporation at Vijapur and Mansa Depots for painting the sign-boards at places under those two Depots. Yasinmiya was the painter. The bus was bearing No. GJJ 7366. After completing the work of painting at village Umiyanagar at about 2.15 p.m. the driver and the said painter Yasinmiya went to Kukarvada for doing painting work if there was a pick-up stand at Village Kukarvada. Near the banyan tree they stopped the bus and there they had not found any pick-up stand which was required to be painted. According to the say of the driver they stopped thereafter the bus near Bajrang Hotel and at that place there is one Akbarmiyas cabin. Said Akbarmiya is related to the driver. The bus was left unattended and it is the say of the driver and the painter Yasinmiya that one Prahladji had boarded the bus and started the same. At that time some females were passing near the hotel of Joitaram Ramdas Patel as father of one Shantaben had expired that day and the females were going towards the well of the Village for taking bath. The said S. T. bus came towards the outskirts of the Village and went towards the females who were passing and the said accident had occurred by which four females expired and two persons were injured. The injured persons and heirs of the deceased had filed the Motor Accident Claim Petitions before the learned Motor Accident Claims Tribunal at Mehsana. Against the judgments and awards passed by the said Tribunal on 30/01/1977 the S. T. Corporation had preferred the aforesaid appeals before this Court. The following list of the said appeals would show who were the claimants what amount was claimed and what amount was awarded by the learned Tribunal etc. ----------------------------------------------------------------------------------------------------------------- F.A.No. Claim Petition Name of the Amount Amount No. claimants(s) claimed awarded 1 2 3 4 5 Rs. Rs. ----------------------------------------------------------------------------------------------------------------- 493/78 36/77 Haribhai Vallabhbhai Darji 40,000 21, 500 & Ors. Heirs of deceased Chanchalben, mother of Haribhai Vallabh- bhai Darji. 494/78 31/77 Chaganbhai Purshottamdas 30,000 17,900 Prajapati & Ors. Heirs of deceased Puriben 495/78 32/77 Joitaram Ramdas Patel (Damage 9,999 2,500 to Hotel) 496/78 33/77 Shantaben Chaganbhai Prajapati. 9,999 3,000 497/78 34/77 Revabhai Becharbhai Prajapati- 30,000 19,000 Husband of deceased Amtiben. 498/78 35/77 Naniben Joitaram Prajapati 9,999 3,000 (Injured) 499/78 37/77 Shankerlal Dwarkadas Prajapati 40,000 21,500 (Husband of deceased Sakuben) 500/78 39/77 Kashiben Vithaldas - Prajapati 26,000 15,000 (Injured) Wife of Purshottamdas Prajapati . ----------------------------------------------------------------------------------------------------------------
(2.)The claim petitions filed by the claimants were resisted by the driver and the appellant S. T. Corporation by filing a Joint written statement Exh. 13. It was contended on behalf of the driver and the S. T. Corporation that there was no negligence on the part of the driver and that accident had occurred because one Prahladji Chavda took away the said bus to Kukarvada and drove it without the permission of the driver. It was also contended in the written statement that the said bus was stopped near Bajrang Hotel near one cabin belonging to one Akbarmiya who is the son of sister-in-law of the driver. That Akbarmiya was asked by the driver to keep a watch over the said bus till he came after taking tea and snacks. As the said bus was driven by a third person without authority it was contended that the opponents were not liable to pay any compensation. It was further contended that the mechanism of the said bus was stopped and said Akbarmiya was asked to keep a watch over the bus so that no person unauthorisedly touched the said bus and that the driver had taken necessary precautions so that any third person might not drive the vehicle. Thus there was no negligence on the part of the driver and therefore the opponents were not liable to pay any compensation.
(3.)In view of the aforesaid contentions the learned Claims Tribunal had raised the following common issues in all the claim petitions:
Whether the claimants prove that opponent No. 1 drove the S.T. Bus of opponent No. 2 rashly and/or negligently and thereby caused death injury or damage? Whether the opponents prove that the S.T. Bus was driven by one Prahladji Navuji Chavda unauthorisedly and by his act whether the accident took place?
The other issue which was raised by the learned Claim Tribunal was with regard to the amount of compensation.