BHAWANI SINGH, CJ. ( 1 ) THROUGH this appeal, judgment of mact (Main) Rajkot District (District Judge) rajkot District in MAC Case No. 382/85 dated 9. 5. 88 is challenged. ( 2 ) SHORTLY stated, claimant was cleaner in the Revenue Department government of Gujarat, earning Rs. 450. 00 per month apart from Rs. 8/- to Rs. 10/-from the tea hand cart in his free time, total earning Rs. 700. 00. Accident took place at about 12. 30 p. m. (noon ). Driver (Opponent no. 1) was driving offending tanker He had been engaged by Morbi Taluka Panchayat (Opponent No. 4 ). Tanker belonged to revenue Department, Government of gujarat (Opponent No. 2 ). It was insured with M/s. New India Assurance Co. Ltd. (Opponent No. 3 ). Allegation is that tanker was being driven at. excessive speed, rashly and negligently, thereby endangering human life on the road. It turned turtle and claimant sustained injuries. Ultimately, his right leg was amputed. He was 22 year old at the time of accident Consequently, compensation o (" Rs. 2. 00,000 00 is claimed. ( 3 ) OPPONENT No. 2 states, inter alia, that it is not possessing various details as to age, injuries etc. of the claimant, therefore, not admitted. Offending vehicle was registered in the name of Collector, surat. In RTO and it was taken by Rajkot water Tanker Sub Division and it was given on hire as per Government Rules and regulations to Taluka Development Officer, morbi as per document dated 21. 6. 1985. It was exclusively in possession and use of the taluka Development Officer, Taluka panchayat, Morbi, at the time of accident. All expenses of repairs, pay of driver etc. were also borne by it. It was insured with new India Assurance Co. Ltd. Which denies contentions raised and states that the vehicle was insured in the name of Director of Relief, revenue Department, Government of gujarat c/o Executive Engineer, Water tanker Division, Gandhinagar. Further, offending tanker is a private carrier given on hire to the Taluka Development Officer, morbi by insured when the accident took place. Insured had totally surrendered control of the offending vehicle to the Taluka development Officer, Morbi and had no control over it, in terms of section 2 (19) of the Motor Vehicles Act, 1939. Claimant was not in the employment of the insured at the relevant time. Insured had totally surrendered control of the offending vehicle to the Taluka development Officer, Morbi and had no control over it, in terms of section 2 (19) of the Motor Vehicles Act, 1939. Claimant was not in the employment of the insured at the relevant time. Therefore, claim is not covered under the policy of insurance. Private carrier was handed over to TDO morbi, therefore, insurer is not liable to indemnify the claim. Taluka Development officer, Morbi denies allegations in the claim. It is alleged that the vehicle, is owned by the Revenue Department, Government of gujarat and insured with New India assurance Co. Ltd. It is denied that it was being driven rashly and negligently at excessive speed without taking, care of the persons on the road. Fact that it turned turtle, therefore, claimant suffered injuries resulting in amputation of right leg is denied. ( 4 ) ACCORDINGLY, Claims Tribunal framed following issues at Exh. 40 : (1) Whether the applicant proves that he sustained injuries as a result of rash and/ or negligent driving of Tanker No. GTC 5423 by Opponent No. 1? (2) If so, whether the applicant proves that he is entitled to recover Rs. 2, 00,000:00 or any part there of from the opponents or any of them ? (2a) Whether the liability of opponent No. 3 insurance Co. , if any, is restricted and limited as per Workmens compensation Act, 1923, applicant being a cleaner and policy of insurance being of TP risk only ? (2b) Whether the Employer opponents are liable to pay penalty of 50 per cent on the amount of compensation to the applicant ? (3) What order ? ( 5 ) AFTER recording evidence, hearing parties, findings recorded are, claimant suffered injuries as a result of accident caused by rash and negligent driving of offending truck by its driver. Claimant is held entitled to compensation of rs. 1,25,800. 00 from opponent driver and tdo, Taluka Panchayat, Morbi. Respondent no. 2 and 3 have been exonerated from liability. ( 6 ) FEELING aggrieved and dissatisfied with this award, it is challenged through this appeal by Morbi Taluka Panchayat and DDO, morbi Taluka Panchayat, Morbi. ( 7 ) HEARD Ms. Shah for appellant; shri Sunil Parikh for Shri Rajni H. Mehta for New India Assurance Co. Ltd. And Ms. Mita S. Panchal, AGP for the State and Shri thakkar for the claimants. ( 7 ) HEARD Ms. Shah for appellant; shri Sunil Parikh for Shri Rajni H. Mehta for New India Assurance Co. Ltd. And Ms. Mita S. Panchal, AGP for the State and Shri thakkar for the claimants. Record perused particularly evidence and examined. Ms. Shah forcefully submits that the impugned award is liable to be set aside because the offending vehicle was owned by the State, registered with it and insured with respondent-3 New India Assurance Co. Ltd. , morbi Taluka Panchayat was utilizing it on its behalf under instructions to supply water in water scarcity areas in its jurisdiction. In support of contentions, relied on apex court decision in GURU GOVEKAR V/s. MISS filomena F. LOBO AND OTHERS [ AIR 1988 SC 1332 ]. Para 12 of the judgment reads :"12. We agree with the view expressed in MONK V/s. WARBEY (1935 (1) KB 75) (supra) In India the opinion appears to be divided on the liability of the insurer of a motor vehicle when the accident giving rise to the claim takes place when the motor vehicle is in the custody of a repairer. In vijayanagaram NARASIMHA RAO V/s. GHANASHYAM DAS TAPADIA, 1986 ACE cj 850, Ramaswamy, J. Of the High Court of Andhra Pradesh held that once the owner had entrusted the motor vehicle to the licensed mechanic to effect repairs, testing being integral part of effecting repairs and the accident had taken place during the course of testing the vehicle. , the necessary conclusion was that the mechanic acted within his limits of authority and in the course of the employment for and on behalf of the owner. Therefore, the owner should be vicariously liable for the acts of the mechanic. Accordingly, he held that both the owner and the insurance company were also jointly and severally liable for the payment of the compensation to the third party, who had suffered the injury by virtue of the. provisions of the Act. The decision of the high Court of Madhya Pradesh in shantibai V/s. THE PRINCIPAL, govindram SAKSERIA technological INSTITUTE, INDORE, 1972 ACE CJ 354, is also to the same effect. provisions of the Act. The decision of the high Court of Madhya Pradesh in shantibai V/s. THE PRINCIPAL, govindram SAKSERIA technological INSTITUTE, INDORE, 1972 ACE CJ 354, is also to the same effect. G. L. Oza, J. , as he then was, in the course of the said decision rejected the contention of the insurance company based on the exemption clause which exempted the insurance company from liability arising out of an accident during the period when the motor vehicle was used for hire or used for organized racing, pace making, reliability speed testing which was also one of the contentions urged before us in the present case although the said contention could not be urged in the circumstances of this case. RAJAPATHI V/s. UNIVERSITY OF madurai, 1980 ACE CJ 113 : ( AIR 1980 mad 219 ) in which it has been held that the doctrine of vicarious liability could not be extended to a case where the accident had taken place on account of the negligence of the driver employed by an independent contractor even when the claim is made not under the Law of Torts but under the provisions of the Act. While it may be true, as we have observed earlier, that under the law of Torts, the owner may not be liable on the principle of vicarious liability, the insurer would be liable to pay the. compensation by virtue of the provisions of section 94 and 95 of the Act, referred to above. " ( 8 ) FROM the above quoted paragraph, it is crystal clear that vehicle was entrusted to the licensed mechanic for repairs, testing being integral part of effecting repairs. During this period, accident took place. Court found that testing was part of repairs, mechanic acting within the limits of authority in the course of employment for and on behalf of the owner to ply it. Since accident took place during this period, owner was liable for the act of mechanic, vicariously. Owner had not parted with the possession of the vehicle which remained with him and participation by mechanic was only for repairs as an agent acting on the instructions of owner of the vehicle, therefore, facts of this case are different and this judgment does not help the appellant. Owner had not parted with the possession of the vehicle which remained with him and participation by mechanic was only for repairs as an agent acting on the instructions of owner of the vehicle, therefore, facts of this case are different and this judgment does not help the appellant. Other decisions are ANDHRA PRADESH state ROAD TRANSPORT CORPORATION v/s. K SUSEELAMMA AND OTHERS [ 2005 acj 559 ] and LEELAWATI AND OTHERS ravindra KUMAR AND OTHERS [ 1998 acj 1306 ]. In the former case, the State transport Corporation hired bus from its owner for being plied on its route. It committed accident. Passengers sustained injuries. Question was, which of the two -the owner or Corporation was liable to pay the compensation to the claimants. It was held that the bus was not in custody of owner at the time of accident. It was under the control of corporation. Vehicle was insured, therefore, corporation and insurance company have been held liable jointly and severally. Similarly, in latter case, vehicle causing accident, was taken on hire by dairy development corporation from the owner though owner driver was driving it at the time of accident. However, it is held that the Corporation would be deemed to be in possession of the vehicle, therefore, liable to pay the compensation. Although definition of owner under section 2 (19) of the Motor Vehicles Act, 1939 is not clear, however, position is clear on facts -Possession and control of the vehicle being essential to determine liability. What was left in definition of owner under section 2 (19) of the Motor Vehicles Act, 1939 has been made good in the new definition of owner under section 2 (30) of the Motor vehicles Act, 1988. As per section 2 (30) of the Motor Vehicles Act, 1988, owner means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. In this case, Exh. 64 is a document pertaining to offending vehicle. It has been handed over to TDO Morbi Taluka Panchayat. Its possession is with TDO, Taluka Panchayat, morbi. In this case, Exh. 64 is a document pertaining to offending vehicle. It has been handed over to TDO Morbi Taluka Panchayat. Its possession is with TDO, Taluka Panchayat, morbi. It is under its control and it was being used by it for supply of water in water scarcity areas under its jurisdiction. Last condition-10 in this agreement provides that for whatever damage or accident suffered by the tanker during the course of use, whole expenditure thereof shall have to be borne by the party taking it i. e. Taluka development Officer, Taluka Panchayat, morbi. This document Exh. 64, with this condition, was accepted by the TDO, Taluka panchayat, Morbi, therefore, liability for the accident and claim arising out of it. Contention of Shri Parikh that when a private carrier is allowed by the owner of the vehicle to be used by another for hire, liability of the Insurance Company ceases, is accepted. No other contention was advanced by the parties. Consequently, there is no merit in this appeal and same is dismissed leaving parties to bear their own costs of this appeal. Compensation be paid to claimants within three months. .