J. B. MEHTA, S. N. PATEL, J.

( 1 ) BOTH the insurance companies of the two vehicles which were involved in this accident have filed appeals in these two matters; while the original claimants the widow and five minor children of the deceased have filed cross objections for getting their full claim of Rs. 29000/by way of damages.

( 2 ) THE accident took place on October 25 1967 the New Year Day of Samvat 2022 at about 9-30 A. M. when the deceased compounder in the company of head compounder Devendra Chandrashanker Ex. 92 was going to the bungalow of the Civil Surgeon Junagadh situated in Datar Manzil at some distance away from the Manoranjan Guest House to offer his New Year Greetings. The deceased at that time was walking on the footpath near the triangular children garden adjacent to the District Library near Kalwa Chawk and was proceeding towards Manoranjan House. The truck in question came over on the footpath from the opposite direction and collided against the Baniyan tree which got uprooted and one of its branches fell on the deceased as a result of which the deceased sustained fatal injuries on the head and died on the spot. The truck had not stopped after colliding with the baniyan tree. It had gone over ahead on the footpath and collided with Pipal tree after which it to a stand still. The truck was coming from the Sardar Chawk where there is a cross inter-junction of five roads which is at 100 ft. distance after taking small turn. It was actually coming from the south to north from the Bilkha side and going towards Kalwa Chawk. The truck had to go on the foot-path to dash against Baniyan tree because its brakes were ineffective and as the Fiat car in question had suddenly emerged from the opposite side going from Kalwa Chawk in the north towards south after overtaking two carts in such a way that there was hardly any room left for the truck to pass on the road on that side. The road in question 28 ft. wide road and on the two sides of the foot-path there are two gardens the western side of the foot-path abuts on the triangular children park while the eastern foot-path abuts on the garden. Both the drivers of these two vehicles in question were found negligent and the award of compensation was arrived at the sum of Rs. 16000/by the Claims Tribunal on the footing that Rs. 2000/from the insurance monies and Rs. 1344/by was of death cum retirement gratuity must be deducted. The truck in question was owned by opponent No. 1 who was the proprietor trading the name of Vishnu Transport Company shown as opponent No. 2 even though it was really a proprietary firm and only a firm name. Under the hire purchase agreement Ex. 100 dated June 11 1965 opponent No. 1 had given this truck under the leave and licence arrangement to Opponent No. 3 whose paid driver was opponent No. 4 Parbat Bhavan at me time of the accident. Opponent No. 5 is the insurance company with whom the truck was insured at the relevant time who issued certificate of insurance Ex. 115 dated October 11 1965 So far as the Fiat car in question is concerned its original owner opponent No. 6 and 7 bad sold the same on September 30 1964 to opponent No. 8 whose paid driver was opponent No. 9 Devshi Thakershi at the time of the accident. Opponent No. 10 the Life Insurance Corporation was the insurer of the Fiat car and the insurance policy was effected by opponent No. 8 Dr. Vibhakar. The insurance of the truck was by opponent No. 1 the original owner even after the aforesaid hire purchase agreement Ex. 100. In view of these facts the Tribunal awarded this claim of damages only against opponent Nos. 3 and 4 the alleged hirer and the driver of the truck and the insurer opponent No. 5 and also against the Fiat owner Dr. Vibhakar opponent No. 8 the driver opponent No. 9 and insurance company opponent No. 10 holding them jointly and severally liable for the amount of damages awarded. As regards opponent No. 1 the owner of the truck and the firm opponent No. 2 and opponent Nos.

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