Decided on February 23,1973

B. Appa Rao Appellant
Donna Mokanda Rao Respondents


S.K. Ray, J. - (1.) THESE two appeals have been preferred under Section 110 -D of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) by the owner of the truck which caused the accident as the result of which Respondent No. 1 suffered physical injuries some of which were of permanent nature and his minor son, aged 3 years, was killed. M.A. No. 90/68 relates to the application for compensation numbered as M.J.C. No. 5/66, made by the Respondent No. 1, the injured, under Section 110 -A(1)(b) of the Act as the legal representative of his deceased minor son, who died in the accident. M.A; No. 89/68 relates to the claim for compensation made in M.J.C. No. 6/66, by the same Respondent No. 1 under Section 110 -A(1) (a) of the Act on account of injuries sustained by him in the accident. He claimed Rs. 40,000/ - as compensation in M.J.C. No. 5/66, but was awarded only Rs. 2,000/ -. He claimed compensation of Rs. 25,000/ - in M.J.C. No. 6/66, but has been awarded a sum of Rs. 5,680/ -. The Claims Tribunal, in both these cases, has exonerated the insurer, Respondent No. 2 from all liabilities. Both the claim cases were disposed of by one order dated 11.5.68 and therefore the two appeals being interconnected are heard together and will be governed by this common judgment.
(2.) THE Appellant in both the appeals has raised a solitary point namely, that the Claims Tribunal was in error in exonerating the insurer, Respondent No. 2, from liability which he had incurred by reason of certificate of insurance issued by him in favour of the Appellant by whom a policy of insurance in respect of the truck, involved with accident, has been affected in pursuance of the statutory provisions of the Act. Before dealing with the sole point raised in these two appeals it is necessary to state the facts of the case in brief. On 21.6.66 at about 7 A.M. Respondent No. 1 was proceeding to Jeypore on bicycle carrying his minor son, aged 3 years, in front, and truck No. ORK 395 came in a high speed from the opposite direction and dashed against him. As a result of this accident, Respondent No. 1 was seriously injured and his minor son was killed instantaneously on the spot. The injured and his son were taken to the lady hospital. The boy was found to be dead. Respondent No. 1 was taken to the general hospital, Jeypore where some first aid was given to him and subsequently he was taken to the King George Hospital at Vizagpatam where he remained as an inpatient from 21.6.66 till 17.8.66. There is no dispute about the findings of the Claims Tribunal that due to the injuries suffered Respondent No. 1 is unable to open his mouth and thus, is unable to take solid food. This requires a special food to be prepared for him. He has lost the utility of the right hand little finger due to fracture. As earlier stated, he has got Rs. 2,000/ - as compensation on account of death of his son and Rs. 5680/ - as compensation for personal injuries suffered by him. Quantum of these compensations is not in controversy in these appeals.
(3.) THE Appellant had effected a policy of insurance in respect of his truck ORK 395 which is Ex. A/2. This policy had been issued by opposite party No. 2, the insurer, and premium has been paid till 22 -7 -66, that is to say, liability in respect of the accident in question being a statutory liability under Section 95(1)(b) of the Act is covered by the said policy. Therefore the insurer will be liable unless exempted either under any of the provisions of the Act or by reason of some special conditions in the policy.;

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