ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE MD SHAH)

1. This appeal filed by the United India Insurance Co.Ltd.challenges the judgment and award passed by the Motor Accident Claims Tribunal (Aux.) Sabarkantha District at Himatnagar in M.A.C.Petition no.491 of 1988.

2. Briefly stated, the accident took place on 5-2-1988 at 12.45 hours when deceased Jayendra was on his way to Seva Vidhyalaya, Chhithoda, District Sabarkantha. At the relevant time, he was studying in the 9th standard and was aged 16 years. It was the case of the original applicants- present respondents nos.1 and 2 that on the said date and time, the opponent no.6 Shakraji Manji was carrying out the work of digging well using the tractor bearing registration no.G.U.Z 7557 owned by him as the said work was entrusted to him by the opponent no.5-Contractor. When the deceased Jayendra- the son of the original applicants nos.1 and 2 reached the bank of river Hathmati, an explosion took place and big stones came flying from the well with great force and one such big stone hit the deceased Jayendra resulting in serious injuries and instantaneous death. Criminal case was registered with the police. As per the case of the original applicants, the deceased Jayendra was clever in his studies and could have fetched a government service after completion of his education since all the members of the original applicants family were Government servants and well educated belonging to schedule tribe. That on account of the accident, the applicants being the parents suffered great pain and shock.. The original applicants, therefore, claimed compensation of Rs.1,50,000/- Allegation is that the accident took place on account of rash and negligent act on the part of the opponent no.6- the driver cum owner of the said vehicle insured with the original opponent no.7 Insurance Company which was in motion at the time of the accident, and therefore, all the opponents are jointly and severally liable to pay compensation. The opponents nos.5 and 6 filed joint written statement at Exh.36 denying all the contentions raised by the claimant in the claim petition including rash and negligent act on the part of the original opponent no.6 driver-cum-owner. They have also denied the use of the tractor for digging well at the time of the accident. Consequently, they prayed for dismissal of the claim. The opponent no.7-Insurance Company filed written statement at Exh.29 denying almost all the contentions raised in the claim petition and further stated that the accident did not occur on account of the use of the tractor in question and that the accident having taken place at a private place i.e. within the compound of Seva Vidhyalaya, Chhithoda, the Tribunal had no jurisdiction to entertain the petition. According to the Insurance Company the applicants are not entitled to recover Rs.1,50,000/-. It was prayed that the claim be dismissed. The opponents 1 and 2 have filed their written statement at Exh.30 stating that they have been wrongly joined and that no award can be passed against them. They have also denied all the contentions raised in the claim petition and prayed for the dismissal of the claim petition. The opponents nos.3 and 4 did not file any written statement.

3. After recording of evidence and hearing the parties, the Claims Tribunal found driver-cum-owner responsible for the accident, therefore, partly allowed the claim petition and awarded compensation of Rs.76,000/- to be deposited with the Tribunal with running interest at the rate of 12 percent per annum from the date of the petition till deposit with proportionate costs. Against this award, the present appeal has been filed.

4. Learned Counsel Mr. R.R.Marshall for the appellant- Insurance Company while assailing the judgment and award of the Tribunal has raised only two contentions. Firstly, it was contended that the accident in question had taken place in a private place i.e. in the school compound, and therefore, the Insurance Company c