1. This is an appeal by the original defendant No. 3 of the Claim Application No. 45 of 1973 decided by the Motor Accidents Claims Tribunal, Ahmedabad (Rural) at Himatnager. Respondents Nos. 1 to 5 here are the original claimants and respondent No. 6 is the jeep driver, respondent No. 7 is the jeep owner and the appellant herein in this appeal is the insurance company, then known as the General Assurance Society Ltd., but now merged with the National Insurance Co. Ltd. Respondents Nos. 8 and 9 are the driver and the owner of the tractor involved in the accident and respondent No. 10 is the New India Assurance Co. Ltd. with which the said tractor was insured. Respondents Nos. 11 and 12 are the parents of the deceased, Gulabbhai. The claim application had been filed by the widow and minor children of the deceased, Gulabbhai, who while travelling by that jeep driver by the original opponent No. 1, had come to die because of the serious injuries in that head-on collision between the said jeep and the tractor on May 18, 1973. The claimants had sought amounts of claim from both the drivers, the two owners of the respective vehicles and the two insurance companies. At the end of the trial, the Tribunal had granted a sum of Rs. 12,600 to the widow, applicant No. 1, adn Rs. 7,500 jointly to applicants Nos. 2 to 5, the minor children. Being aggrieved by the said judgment and award, the insurance company that had insured the jeep has filed the present appeal.
2. We find from the evidence on record that deceased, Gulabbhai, was a gratuitous passenger in the jeep, which was privately owned by its owner Dr. Dhirubhai, Because of the negligence on the part of the driver of that jeep, the insurer of the jeep car, namely, General assurance Society Ltd., and now the appellant, National Insurance Co. Ltd., cannot be made liable.
3. On behalf of the respondents, that is, the owner, driver and insurance company of the tractor in question, it was urged that because of the circular issued by the insurance companies, even in respect of a gratuitous passenger, the insurer of a privately owned vehicle must bear the amount awarded. There is nothing on record to justify this. So, the appeal, is required to be allowed exonerating the appellant of the liability.
4. This brings us to the cross-objections filed on behalf of respondents Nos. 8 to 10, namely, the driver of the tractor, its owner and its insurance company. Regarding negligence, their arguments cannot be accepted. The learned Tribunal has examined this question very critically in paragraphs 10, 11, 12, 13 and 14 of the judgment under appeal and we are in full agreement with what he has observed there. It is really unfortunate that though the order was 24' wide, the drives of the two vehicles dashed their vehicles against each other and brought about the untimely and tragic death of Gulabbhai. The learned Tribunal was right in holding that both the drivers were equally responsible and there was no question of any apportionment of liability. If the driver of the tractor is also jointly and severally liable for the mishap, the owner and the insurance company cannot escape because qua them, Gulabbhai was a third party.
5. The result is that the appeal is allowed with no order as to costs. The cross-objections are dismissed with no order as to costs.