The main legal point established in the judgment is the determination of liability of insurance companies based on the status of the claimants as gratuitous passengers, as defined in the relevant sections of the 1939 Act and 1988 Act.

JUDGMENT :

1. The present group of First Appeals arise from the common judgment and award dated 12.12.2005 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot and therefore, they are heard analogously and are being disposed of by this common judgment.

2. Feeling aggrieved and dissatisfied with the judgment and award dated 12.12.2005 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot (hereinafter referred to as “the Tribunal”), in M.A.C.P. Nos.549/2003, 544/2003, 545/2003, 546/2003, 547/2003 and 548/2003, the appellant - United India Insurance Company Ltd. (Original Opponent No.2) has filed first group of appeals i.e. First Appeal Nos.1406 of 2006 to 1411 of 2006, whereby, the appellant – United India Insurance Company Ltd. is held liable 35% negligent in the alleged accident and the Oriental Insurance Company is held liable 65% negligent for the said accident. The second group of First Appeals i.e. First Appeal Nos.3813 of 2006 to 3818 of 2006 are filed by the appellant – Oriental Insurance Co. Ltd. (Original Opponent No.4), challenging the amount of quantum awarded by the Tribunal vide impugned judgment and award dated 12.12.2005.

3. Brief facts of the present case are that, on 12.05.2003, deceased Dineshbhai Mavjibhai and injured Dayabhai Kanabhai in the company of other four deceased were proceeding in a Matador bearing registration No.GJ-3-U-9099 to attend the marriage ceremony at village Upleta. That all the aforesaid deceased as well as injured boarded the Matador carrying goods which was being driven by driver Rameshbhai Kanabhai. When the said Matador reached a village of Dhoraji, a that time, truck bearing registration No.GJ-10-U-6350, containing lime, came with full speed in a rash and negligent manner, went on its wrong side and dashed with the said Matador. In the result, five persons died, but unfortunate injured fellow sustained grievous and serious injuries over his persons.

4. Heard Mr.Maulik Shelat, the learned counsel appearing for the appellant – United India Insurance Company Ltd. in group of First Appeal Nos.1406 of 2006 to 1411 of 2006, Mr.H.S. Munshaw, the learned counsel appearing for the appellant – Oriental Insurance Company Ltd. in group of First Appeal Nos.3813 of 2006 to 3818 of 2006 and Mr.Hemang Shah, the learned counsel appearing for the original claimants in all the First Appeals.

5. So far as the First Appeal Nos.1406 of 2006 to 1411 of 2006 are concerned, Mr.Maulik Shetal, the learned counsel appearing for the appellant – United India Insurance Company Ltd. submitted that the liability fasten by the Tribunal upon the appellant - Insurance Company at 35% is against the settled legal principles and in the present case it is against reported decision of the Apex Court in case of National Insurance Company Vs. Baljit Kaur reported in 2004 (2) SCC 1 and other decisions. He further submitted that the impugned judgment and award is erroneous so far as the liability fasten upon the present appellant – Insurance Company is concerned and against the facts of the present case. Since all the deceased and injured were travelling as a gratuitous passengers in the goods vehicle as a barati to attend the marriage function, the appellant – Insurance company is not liable and other ground enumerated in the memo of appeal, the present group of appeals is filed by the appellant – United India Insurance Company Ltd.

5.1 So far as the second group of appeals i.e. First Appeal Nos.3813 of 2006 to 3818 of 2006 is concerned, Mr.H.S. Munshaw, the learned counsel appearing for the appellant – Oriental Insurance Company Ltd. submitted that the quantum of award passed by the Tribunal is not just and proper. He submitted that only because truck is a bigger vehicle than the matador, the Tribunal has held driver of the truck liable as 65% negligent for the alleged accident, which is not proper. He further su