Judgment:
S.A. Shah, J.
1. These appeals are filed by the National Insurance Co. Ltd., Surat, against the judgment and order dated 23-6-1,978 passed by the Accidents Claims Tribunal No. 1, Surat (hereinafter referred to as 'the Tribunal'), in Motor Accidents Claims Petitions Nos. 104 of 1977, 105 of 1977 and 121 of 1977 which arose out of the common accident. The Tribunal has disposed them of by a common judgment, and we have also, therefore, heard these appeals together and disposed of them by this common judgment.
2. The short facts leading to these appeals are that on 5-5-1977 at about 3-30 p.m. near village Uncha Mala, Taluka Vyara, District Surat, the accident in question occurred as a result of which three persons, viz. (1) Chhitubhai, a boy aged 17 years, (2) Jagdish, a boy aged 5 years, and (3) Maniben Khalpabhai, died.
3. Claims Petition No. 104 of 1977 is filed by father, two brothers and sister of deceased Chhitubhai, claiming compensation of Rs. 50,000/-. The Tribunal awarded total compensation of Rs. 12,000/- only. Claims Petition No. 105 of 1977 is filed by father and mother of deceased Jagdish claiming total compensation of Rs. 15,100/-. The Tribunal awarded total compensation of Rs. 7,500/-only. Claims Petition No. 121 of 1977 is filed by the mother's sister and married sister of deceased Naniben claiming total compensation of Rs. 40,000/-. The Tribunal awarded total compensation of Rs. 3,000/- only. Though the amounts of compensation awarded by the Tribunal in two cases are paltry amounts, and in one case only Rs. 12,000/-, the appellant-Insurance Company has challenged the same by way of these appeals.
4. Mr. R.N. Shah, learned Advocate for the appellant in all these appeals has challenged the judgment and order of the Tribunal only on the ground that all the three deceased persons were the gratuitous passengers of the tractor which met with the accident and, therefore, they were not entitled to any amount of compensation under the Motor Vehicles Act, 1939. Mr. Shah has particularly drawn our attention to the following observations made by the Tribunal in paragraph 9 of its judgment:..I hold that, in the instant case, there is sufficient material on the record to show that, all the three deceased were in the trailer attached to the tractor, at the relevant time driven by opponent No. 1, and this accident occurred.
However, we drew the attention of Mr. Shah to the following ultimate observations made by the Tribunal in paragraph 15 of its judgment:..There is no evidence worth the name, on the record, to show that, the deceased were the passengers either, for hire or reward, without hire or reward, travelling by the trailer attached to the offending tractor. When the defence has been taken by the Insurance Company, opponent No. 3, that the deceased were the passengers carried by gratia, it is for that Company to prove that fact, like any other fact.
No doubt, in view of the aforesaid two inconsistent findings of the Tribunal we permitted Mr. Shah to read the evidence and point out whether there is any evidence to show that the deceased were the passengers travelling in the tractor in question. Mr. Shah was not able to point out any evidence worth the name except some questions put to the eye-witness in cross-examination.
5. We have perused the claims petitions and read the evidence from which the following position emerges:
(1) The tractor in question was being driven along the Bank of the canal; and
(2) All the three deceased persons met with the accident, with the result that they were thrown in the canal and they met with death by asphyxia due to drowning.
The appellant-Insurance Company has not examined the driver, nor has it adduced any other evidence to show that the deceased persons who met with accident were travelling in the tractor in question. The Insurance company-has gone to the extent of taking the defence that the trailer attached to the tractor at the relevant time was not insured with the Insurance Company, Fortunately, policy was available and was brought on the record to show that the defence raised by the Insurance Company was totally false. In these circumstances we have to assess the evidence.
6. The accident in question having occurred at the Bank of the canal, hardly any witness would be available at such a place. Fortunately, one Nasvanbhai Gambhirbhai (witness No. 4 of the claimants) who was with the two deceased boys was present at the relevant time. He has specifically stated that all the three deceased persons were knocked down by the tractor, due to which all the three of them were thrown away in the waters of the canal, and their bodies were found on the third day. According to him, the trailer attached to the tractor got dismantled and slipped down. The trailer did not fall down in the canal waters. There is no suggestion whatsoever in the cross-examination of this witness that the deceased persons were travelling in the tractor or the trailer attached to it. Except the fact that this witness was a relation of one of the deceased boys, there is nothing on the record to suggest that his evidence cannot be believed
7. Then Mr. Shah submitted that the Post-mortem reports produced in the case negative the case of the claimants because no other injury has been found on the persons of the deceased by the doctor who performed the post-mortem examination over their dead bodies. It appears that the Tribunal has also fallen into an error by accepting this argument. If we accept the theory advanced by the Insurance Company that all the three deceased persons were travelling in the tractor or the trailer attached to it, and if they had been thrown out therefrom and had met with death, then there would have been numerous injuries found on the persons of the deceased, and the doctor who performed the post-mortem examination would not have failed to mention the same in the post-mortem reports. The very fact that noticeable injuries are not mentioned in the post-mortem reports clearly suggests that the deceased must have been knocked down by the tractor or the trailer attached to it, and due to that they must have fallen into the canal and died of drowning. Therefore, this argument of Mr. Shah has no merits.
8. There is no reason for us not to accept the evidence of eye-witness Naswanbhai who was present at the relevant time at the place of accident, especially when there is not even a suggestion made in his cross-examination that the deceased persons were travelling in the tractor. We, therefore, confirm the observations made by the Tribunal in paragraph 15 of its judgment that there is no evidence worth the name to suggest that the deceased were travelling in the tractor as gratuitous passengers. There is no dispute that there was accident and that the deceased persons had met with the accident at the relevant time.
9. In view of the circumstances aforesaid, we find no merit in these appeals and the same are, therefore, dismissed with costs.