( 1 ) THIS appeal has been filed by National insurance Co. Ltd. against the judgment of the whether Reporters of Local Papers may be allowed to see the judgment "yes m. A. C. Tribunal (Aux.), Fast Track Court no. 8, Nadiad dated 24. 8. 2005 in m. A. C. Petition No. 1454/96.

( 2 ) HEARD Shri S. B. Parikh, learned counsel for the appellant and perused the record.

( 3 ) THE brief facts leading to the filing of the claim petition are that the deceased Rasulbhai Husainbhai was discharging his duty as a driver of Truck no. GJ-7u-9191 owned by opponent No. 1. On 24. 6. 96, at about 12. 30 noon, when the deceased was driving the said truck on the slope of Dharampur, brakes of the vehicle failed and the truck fell down into a Khadi. The deceased, who was driving the truck, was seriously injured and succumbed to his injuries. According to the case set up by the claimants, the owner of the truck was not servicing and looking after the maintenance of the truck regularly and since the truck was not in a roadworthy condition, the accident took place. The deceased was aged 40 years and was hale and hearty. He was earning Rs. 2500/- per month and was the only bread winner of the family. Had he survived, he would definitely have earned more. A total of Rs. 5 lacs was claimed by way of compensation with costs and interest, by the legal heirs of the deceased.

( 4 ) ON service of summons, the opponent no. 2 i. e. the appellant herein, filed a written statement. In spite of having been served, the opponent No. 1 (owner of the truck) did not appear and the matter was proceeded ex parte against him. The appellant contested the claim mainly on the ground that the accident took place due to the sole negligence of the deceased himself and the appellant is not liable to pay any compensation. The age, income, quantum and other related matters have also been seriously disputed by the appellant.

( 5 ) AFTER framing of the issues and taking of the evidence, the M. A. C. Tribunal, on the basis of the material on record came to the conclusion that the accident occurred due to the lack of road- worthiness of the vehicle. Although the deceased was driving the vehicle himself, there is evidence on record that the owner was informed off and on that the vehicle was not in a fit condition but the owner did not bother to have the vehicle repaired. Had he done so, the accident would not have occurred and the deceased would not have lost his life.

( 6 ) THE owner of offending truck No. GJ-7u- 9191 has not bothered to put in appearance even though summons have been served upon him and has been proceeded ex parte. There is no dispute that on the date of the accident, the opponent No. 1 was the owner of the offending vehicle. The Certificate of Insurance has been produced at Mark 16/1 which goes to show that the opponent No. 1 has taken out the insurance policy of the offending vehicle for the period from 3. 1. 96 to 2. 1. 97, which covers the date of the accident. There is evidence to the effect that the owner was informed time and again to have the vehicle repaired, but he did not do so. This aspect has also not been disputed. There is not an iota of material on record to indicate that the deceased, who was driving the truck himself, was negligent. Besides this, the m. A. C. Tribunal has taken note of the fact that from the FIR as well as the panchanama it appears that the accident has occurred due to the lack of fitness of the truck. The Insurance Policy relating to the offending vehicle carries a special premium which covers the risk of the driver also. The finding of the m. A. C. Tribunal that the owner was negligent in not keeping the vehicle in roadworthy condition and since the policy of insurance was effective on the date of the accident and covered the risk of the driver as well, the owner and the appellant are jointly and severally liable to pay the amount of compensation to the claimants, cannot be faulted.

( 7 ) THE M. A. C. Tribunal has awarded rs. 4,96,500

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