M.H.DESHPANDE, J. - (1.) THIS is an appeal by the 3rd defendant from a decree for Rs. 3,00,000/- passed against the defendants Nos. 1 to 4, while limiting the liability of the 4th defendant the insurer to the amount of Rs. 50,000/- only together with interest on the amount of Rs. 2,50,000/- at 6 per cent per annum.
(2.) THE claim is based upon an accident which occurred on 25th January 1975 at about 11 A.M. when Ashok the son of the plaintiffs was proceeding by Central Avenue Road towards Gandhibag on his motor-cycle No. MTA 9196. The 1st defendant was driving motor truck No. MHG 5271 in the same direction from the side of Mayo Hospital towards Gandhibag and while trying to overtake the motor-cycle of Ashok, knocked Ashok from behind near Nirala Chowk. Ashok fell off the motor-cycle and was crushed to death under the left side wheels of the truck. The motor-cycle was also damaged. The 1st defendant drove away the truck without stopping. The police reached the dead body of Ashok to the Mayo Hospital where post-mortem examination was performed and bis dead body was later entrusted to his maternal uncle Girdhar Agarwal for being taken to his native place Umarkhed. A charge-sheet came to be lodged against the 1st defendant under Section 304-A of the Indian Penal Code. Ashok at the time of his death was a final year student for M.B. B.S. According to the plaintiffs who are respectively the father and step-mother of Ashok, Ashok was a bright student. He would have become a full-fledged doctor by 1976 and was intending to start practice at Hyderabad after shifting residence from Umarkhed. With a view to establishing Ashok, the plaintiffs closed their partnership business as well as Messers Agarwal Saw Mill and timber and contract business at Umarkhed in 1974 In their estimate Ashok would have earned at least Rs 5,000/-per month for a minimum period of 35 years and would have made provision for them at Rs. 2000/- per month at least for 20 years and they therefore, claimed Rs. 4,80,000/- on account of the loss, the expectations of future pecuniary benefit under Section 1A of the Fatal Accidents Act, 1855, and Rs. 1,20,000/- as damages for the shock, mental agony, suffering and loss of expectancy of life under Section 2 of the Fatal Accidents Act. An amount of Rs. 2000/- was also claimed as compensation for damage to the. Motor-cycle. It was alleged that the 1st defendant was the driver of the truck employed by the 2nd defendant who used the truck as a public carrier. The 2nd defendant was shown as a hirer and the 3rd defendant as the owner of the truck in the registration certificate issued by the Regional Transport Officer, Nagpur. The 4th defendant was the insurer of the truck under a comprehensive insurance policy dated 19-11-1974, while 5th defendant was insurer of the motor-cycle It was alleged that the accident was caused by the wrongful act, neglect or default of the 1st defendant and compensation was claimed as stated above.
(3.) THE contest was only between the plaintiffs and the 3rd defendant, the suit having proceeded ex-parte against defendants Nos. 1 and 2, According to the 3rd defendant the present appellant, the truck was let out to the 2nd defendant under a hire purchase agreement dated 18-10-1973 and it was being run at the time of the occurrence at the instance and under the control and on behalf of the 2nd defendant who was shown as the owner of the vehicle. While denying the other allegations, the 3rd defendant contended that there was no master and servant relationship between him and the defendants Nos. 1 and 2 and he was not, therefore, liable for damages or compensation as claimed. The 4th defendant also denied the claim.;