JUDGMENT
J.N. Bhatt, J.
1. A group of these four appeals arose out of a common judgment and award. Therefore, they are disposed of by this common judgment.
2. The appellants are the original opponent Nos. 1 and 2, respondent No. 2 in all these appeals is the original opponent No. 3. For the sake of convenience and brevity, they are hereinafter referred to as the original claimants and original opponent Nos. 1, 2 and 3. The claimants filed Motor Accident Claim Petition Nos. 22, 23, 24 and 25 of 1977 before the Motor Accidents Claims Tribunal No. 2, Ahmedabad (Rural), at Narol (‘Tribunal’ for short, hereinafter) for personal injuries and damages to goods due to a vehicular accident. The accident in question occurred on 17.4.1977, at about 7 a.m. All the four claimants, who are agriculturists, were travelling in the motor truck No. GTG 2311, along with their goods, on the day of the accident. The claimants had, jointly, hired the said motor truck for transporting Manglori roof tiles from Morbi to their village Vanthvali, in Taluka Mehmadabad, District Kheda. The said motor truck was, thus, loaded with Manglori roof tiles and it was proceeding on Ahmedabad-Bhavnagar State Highway. When the said truck reached near village Bagodara at about 7 a.m., at that time the truck went off the road and fell in a roadside ditch, after it was dragged for some distance on account of bursting of tyre. With the result, the Manglori roof tiles loaded in the motor truck were broken and damaged. All the claimants had sustained injuries on different parts of their body. It was alleged that the offending truck was driven by the original opponent No. 1, in a rash and negligent manner. That the offending truck was driven by original opponent No. 1, it was owned by original opponent No. 2 and it was insured with original opponent No. 3, at the relevant time. Therefore, each claimant claimed Rs. 5,000/- by way of compensation for personal injuries and damages to the goods from the opponents. Earlier, the claim was for Rs. 9,000/- but later on it was reduced to Rs. 5,000/- by each claimant in the aforesaid four claim petitions.
3. The opponents appeared and resisted the claim petitions. A composite written statement was filed by original opponent Nos. 1 and 2. Separate written statement was filed by original opponent No. 3. It was admitted that the accident occurred on account of bursting of tyre. However, inter alia, it was contended that there was no rashness or negligence on the part of the opponent No. 1. It was further pleaded that the accident occurred on account of all of a sudden bursting of tyre which was because of latent manufacturing defect. Thus, the opponents contended that the accident was inevitable and the manufacturing defect in the tyre was not detected. It was admitted that the original opponent No. 1 was the driver, original opponent No. 2 was the owner and original opponent No. 3 was the insurer of the offending truck at the relevant time.
4. On appreciation of the evidence on record, the Tribunal was pleased to find that the accident in question occurred on account of rash and negligent driving on the part of original opponent No. 1, the driver of the offending truck. The Tribunal, therefore, awarded Rs. 800/- to each claimant for personal injuries and also awarded to each claimant Rs. 2,251/- by way of damages to the goods loaded in the offending truck. The Tribunal found that original opponent Nos. 1 and 2 are liable for the payment of compensation of Rs. 3,051/- with interest at the rate of 6 per cent per annum and proportionate costs to each claimant. The Tribunal also held the insurer of the offending truck, original opponent No. 3, jointly liable for the payment of compensation to the extent of Rs. 800/- only to each claimant. This judgment and award came to be passed on 30.9.1979 in the aforesaid four claim petitions.
5. Original opponent Nos. 1 and 2, being the driver and the owner-insured of the offending truck, have, now, come up before this court, in these four appeals, challenging the legality and validity of the said judgment and award passed in the aforesaid four claim petitions by invoking the aid of the provisions of Section 110-D of the Motor Vehicles Act, 1939 (‘Act’ for short, hereinafter).
Learned counsel for the appellants has, firstly, contended that the accident in question was an inevitable accident. It is further contended that the accident in question occurred on account of bursting of tyre and it was because of a latent manufacturing defect in the tyre. The plea of inevitable accident is required to be established by the person who propounds it. There is no clear evidence to show that the accident in question was an outcome of latent or patent manufacturing defect in the tyre. Simply because the driver has stated in his evidence that he had checked the vehicle before the journey commenced on the fateful day, could not be said to be sufficient or efficient evidence to discharge the heavy burden of proving an inevitable accident. The Tribunal has considered this aspect. There is no reason to interfere with the finding of fact of the Tribunal on this point. It was contended that two new tyres were purchased on 15.11.1976 and the accident occurred on 17.4.1977. Therefore, it is argued that the new tyre which was used got burst. It is, thus, contended that the tyre which had burst was one of the two new tyres purchased by the owner of the truck vide bill, Exh. 54, on 15.11.1976. Simply because a new tyre was used almost five months before the date of the accident, it cannot be presumed that the bursting of the tyre was on account of latent manufacturing defect. The said tyre was used for more than five months after it was installed and the truck had run for more than 152 days. What is required to be proved in a case of inevitable accident is that there was direct nexus between the accident and the latent or patent mechanical or manufacturing defect. It is, rightly, held by the Tribunal that such a proximate nexus is missing and no link is established. Therefore, in the opinion of this court, there is no reason to interfere with the finding of fact about the cause of accident, which was nothing but the grown rashness and negligence on the part of the driver of the offending truck. With the result, the first contention raised on behalf of the appellants is required to be rejected.
6. The learned counsel for the appellants has raised second contention about the amount of compensation of Rs. 2,251/-awarded to each original claimant for the damages of their goods. Having examined the evidence on record, this contention is also devoid of any merit. Each claimant has filed affidavit stating that the damage to the Manglori roof tiles was to the extent of Rs. 2,251/-. All the four claimants had purchased Manglori roof tiles from Morbi for their personal use and they had jointly hired the offending truck for transporting the said goods from Morbi to their village Vanthvali, in Kheda District. It is contended that the panchnama is not produced and, therefore, the evidence of the claimants should not be believed. This contention, ex facie, cannot be sustained. Had the panchnama been produced, it could have been better. But merely because the panchnama was not produced, it would not lead to an inference that the evidence of the claimants on this score is false. Apart from that, there is clear evidence that each claimant sustained damage to the extent of Rs. 2,251. Moreover, it is an admitted fact that the offending truck had left the road and it became turtle and fell in a roadside ditch. Therefore, it can safely be concluded that the goods like Manglori country roofing tiles would not remain safe when a track proceeding with high speed goes off the road and becomes turtle. Be as it may. There is evidence on record to show that the entire goods loaded in the truck had been broken and damaged and, therefore, the conclusion arrived at by the learned Tribunal that the goods had been damaged to the tune of Rs. 2,251/- and consequently awarding a sum of Rs. 2,251/- to each claimant, cannot be said to be unreasonable or unjustifiable. Hence, the second contention is also without any substance.
7. Lastly, it is, seriously, contended on behalf of the appellants that the Tribunal has wrongly exonerated the insurance company, original opponent No. 3, in so far as damages to the goods were concerned. It is contended that the insurance company, original opponent No. 3, is liable for payment of entire amount of compensation. The finding of the Tribunal is that in so far as the amount of Rs. 800/- for personal injuries is concerned, the insurance company will be jointly liable. For the remaining amount of Rs. 2,251/- the insurance company came to be exonerated. This finding of the Tribunal is fully justified in the facts and circumstances of the case. Insurance policy is produced, in the present case, at Exh. 55. The Tribunal has interpreted Clause (d) in Section II of the policy. It is contended that the interpretation of the Tribunal is erroneous. In order to appreciate this contention, it would be necessary to examine Clause (d) in Section II of the policy which is produced, at Exh. 55. It reads as under:
(d) The company shall not be liable in respect of damage to property belonging to or held in trust by or in the custody or control of the insured or a member of the insured’s household or being conveyed by the motor vehicle.
Relying on the aforesaid clause, the learned Tribunal held that the liability of the insurer is specifically excluded in so far as the damage to the goods loaded in the truck is concerned. The interpretation of the learned Tribunal on this point cannot be said to be erroneous. The finding of fact by the Tribunal on this point is fully justified. It has remained unimpeachable. When the risk of the goods of the hirer of the goods vehicle is not covered by the policy, the insurance company cannot be held liable for the damages to the goods resulting out of a vehicular accident. In the present case, the insurance company is, rightly, excluded from the payment of damages to the goods in view of the specific exclusion made in the aforesaid Clause (d) in Section II in the insurance policy.
8. It is, alternatively, contended that the Tribunal constituted under the Act will not have jurisdiction to entertain the application for damage to the property or goods in view of the provisions of Section 95 of the Act. This submission is without any substance. The insurance company can be held liable for personal injuries caused to the owner of the goods, travelling in a goods vehicle, along with his goods, and he is entitled to compensation and the Tribunal constituted under the Act is competent to award just and reasonable amount of compensation. In so far as the damages to the goods” are concerned, the insurance company cannot be held liable in view of the specific exclusion clause incorporated in the insurance policy. The contention that the Tribunal will not have jurisdiction to entertain an application for compensation for damages to the goods is also without any merit. In fact, this point is fully covered by the decision of this court rendered in the case of Ahmed Ahaiyat Saiyed v. Ibrahim Bhachal Shah 1985 ACJ 83 (Gujarat). Needless to mention that the claim petition was not filed only for the damage to the goods but it was filed claiming compensation for personal injuries also. Therefore, the Tribunal was competent to entertain and adjudicate upon the claim under Section 110-A of the Act. Therefore, the last contention raised on behalf of the appellants also must fail, being without any merit. In the result, all these four appeals are required to be dismissed. Having regard to the peculiar facts of the case, the parties are directed to bear their own costs.
9. In the result, all the aforesaid four appeals are dismissed accordingly with no order as to costs.