Decided on February 23,1973

The Motor Owners Insurance Co. Ltd Appellant
Srimati Renuka Roy And Another Respondents


Baharul Islam, J. - (1.) THIS appeal is under Section 110 -D of the Motor Vehicles Act 1939 (hereinafter referred to as 'the Act') by the insurer and is directed against the award of the Motor Accident Claims Tribunal, Jorhat in Motor Accident Case No. 87 of 1968. The facts of the case, briefly, are: Gajendra Roy, deceased, was working as a Yard -master of the Assam State Transport at Jorhat at a monthly wage of Rs. 235/ -, On 6 -3 -66 at night, while he was returning home by the Trunk road, he was knocked down by vehicle Number ASJ 7021 coming from the western side of the Jorhat town. Gajendra Roy died instantaneously at the spot. The vehicle was owned by opposite party Number 1, Bhagwandas Bawri of Assam Travels Private Limited, Jorhat. The police was informed over the phone, A G. D. entry was made by the police of the thana. Police visited the spot and took up investigation and seized the vehicle in front of Assam Travels. Jorhat. The claimant is the widow of Gajendra Roy and she has claimed Rs. 75,000/ - against opposite party No. 1 and also has made appellant who is the insurer, opposite party No. 2 in her application.
(2.) THE opposite parties filed written statements. They deny that the vehicle in question was involved in the accident and plead that the claim was highly excessive. The learned Claims Tribunal framed six issues of which we are concerned with four. They are: "3. Whether the motor vehicle Number ASJ 7021 was involved in the accident in question? 4.WHETHER there is any cause of action as against opposite party No. 2 (Motor Insurance Company) or whether there is any cause of action at all for this case for compensation? 5.WHETHER the amount of compensation claimed is highly excessive? To what relief, if any, are the parties entitled - The learned Claims Tribunal, after trial, awarded Rs. 14,000/ - against the claim of Rs. 75,000/ -. He held that the vehicle No. ASJ 7021 knocked down Gajendra Roy and caused his instantaneous death and that the vehicle was owned by opposite party No. 1.
(3.) Shri B. Das, learned counsel appearing for the claimant respondent, has raised the preliminary objection that the appeal by the insurer is not competent inasmuch as the grounds of the appeal are barred under Section 96 (2) of the Act and relies on a decision of this Court in Premier Insurance Co. Ltd. v. The Member, Motor Accident Claims Tribunal Jorhat M. A. (F) No. 56 of 1971 D/ - 19 -1 -73 = (AIR 1973 Gau. 97). On the other hand Shri K. L. Jain, learned counsel for the appellant, submits that the above decision is no authority in support of the preliminary objection inasmuch as the point he is going to raise in the appeal was not raised in the above decision. Shri Jain relies on sub -Section (1) of Section 96 and submits that there is no valid judgment against the insured and in fact no judgment could at all be passed against the insured and therefore no liability of the insurer arises in the instant case.;

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