MADHUSUDAN RAI Vs. BASANTI KUMARI DEVI

JUDGEMENT

(1.) THIS appeal is by the opposite party No. 2 in a proceeding for determination of compensation by the Claims Tribunal under Section 110-B of the Motor Vehicles act (hereinafter referred to be as the Act) initiated upon an application filed by respondent No. 1 petitioner under Section 110-A (1) of the Act and is directed against part of the award of the Claims Tribunal saddling the appellant with the liability to Pay Rs. 5,500/- as his share in the total amount of compensation determined at Rs. 10,000/- with proportionate costs.

(2.) ON 22-12-1968 at about 5 p. m. a Taxi bearing No. ORC 913 was involved in a collision with the Truck bearing No. ORM 584 on the National High Way at a distance of 23 kilometres from Balasore. The taxi was proceeding from Bhadrak side towards Balasore and it is stated that the truck was pro-ceeding in the opposite direction. As a result of this collision, the taxi overturned, and its top was almost detached from the body. Three of its passengers died at the spot and several others were injured. Amongst the dead, one was Pradeep Kumar Kar. son of claimant-respondent No. 1. The taxi was being driven by its owner, who also met with instantaneous death in this accident.

(3.) RESPONDENT No. 1 filed an application for compensation arising out of the aforesaid accident under Section 110-A (1) of the Act claiming Rs. 1,50,000/-as compensation. His application was register-fid as Misc. Case No. 9 of 1969 before the Motor Vehicles Claims Tribunal. O. Ps. 1 to 9 are the heirs of the deceased owner-cum-driver of taxi ORC No. 913. O. P. No. 10 is the owner of the truck ORM 584 involved in the accident. O. P. No. 11 as the Insurer of the taxi and O. P. No. 12 is the Insurer of the truck. O. Ps. 1 to 6 in one group and O. Ps. 7 to 9 in another group filed their respective written statements. They denied their liabilitv on various grounds. One was that they have not inherited any property from the deceased owner-cum-driver of ORC 913 and as such, liability for compensation cannot be fastened on them; the other was that the taxi was in perfect mechanical condition and there was no negligence or rashness on the part of its driver, rather, the accident was due to the rash and negligent action on the part of the driver of the truck. O. P. No. 10. the appellant took up the defence that the truck was standing ton the left side of the road for being loaded with paddy bags when the taxi came with break neck speed and dashed against the right side rear wheel of the truck standing and then somersaulted and fell at a distance of 70 to 80 ft. awav from the truck. As a result of this collision, the rear wheel of the truck was dislocated from the bodv and thrown on the right side drain. He also averred that the amount of compensation claimed was excessive and he as the owner of the truck is in no way liable to pay the same or any part of it. As to the truck's position on the road, it is said that only one foot of metalled portion in the front and about two feet qf metalled Portion in the rear was occupied by the truck. The Insurer of the taxi (O. P. No. 11) an a separate defence urged that the taxi was being driven by the owner; who did not hold a valid licence to drive on the date of the accident and that the taxi was carrying more than permissible number of passengers at the time of accident and violated some specified conditions of the insurance Policy and. as such, he is not liable to pay the compensation. He also urged that his liabilitv. at any rate, cannot exceed Rs. 4,000/- the maximum limit statutorily fixed under Section 96 : (2) of the Act as it stood at the time of the accident. O. P. 12, the Insurer of the truck filed a separate written statement. His case is that he issued a policy of the Motor Insurance for one year with effect from 10-121968 in favour of M/s. Rai-baba of Sabitri Rice Mill in respect of Ford truck manufactured in the year 1940 bearing registration No. ORM 584, while the truck which was involved in the accident is of Studebaker make the year of manufacture of which is 1956. though it bore the registration number ORM 584 and he, not being the insurer of this vehicle, is not liable for compensation. He put the petitioner to the strict proof of the fact that he is the insurer of the truck involved in the accident.