- (1.)THIS appeal is filed by the owner of the truck against the judgment and award dated 3.8.2006 passed by the learned Motor Accident Claims Tribunal (Aux.), Fast Track Court No.4, Morbi in Motor Accident Claims Petition No.289 of 1990.
(2.)THE brief facts of the case are such that on 29.8.1990, the deceased Bhanji Mohan was travelling with goods (tiles) in Truck No.GTZ-9688. The said truck was going to Rajkot from Morbi and the truck was driven negligently, rashly and recklessly and hence near Dhruvnagar the driver took half turn and he lost control over the steering and the truck turned turtle, which resulted into sudden death of the deceased. The deceased was married and divorced before the accident and hence the mother of the deceased filed the claim petition claiming Rs.3,50,000/-. After considering the documents on record and the oral evidence, the learned Tribunal awarded Rs.1,06,000/- to the claimant with 7 1/2% interest from the date of petition till realization. However, the learned Tribunal dismissed the claim petition against the insurance company. Hence, this appeal is filed by the owner of the said truck.
Heard learned advocate Mr.Karia for the appellant, learned advocate Mr.Thakore for respondent no.1 and learned advocate Mr.parikh for respondent no.2. Learned advocate Mr.Karia submits that the deceased was working as a cleaner in the truck and that premium is paid for the cleaner by the present appellant-owner with the insurance company and in spite of that the Tribunal has not considered the said fact and by that committed error in exonerating the insurance company with the liability.

(3.)LEARNED advocate Mr.Parikh appearing for the insurance company submits that the Tribunal, has after going through the FIR, panchanama and other evidence, rightly come to the conclusion that deceased was not working as cleaner but boarded the bus from the bus stop as a passenger in the truck and so in light of the decision rendered by the Apex Court in the case of New India Insurance Company Limited V/s Asha Rani and others, reported in 2003 ACJ page 1, the insurance company is not liable to pay any compensation as no premium is paid for gratuitous passenger.