ABDUL GHAFOOR Vs. NEW INDIA ASSURANCE CO

JUDGEMENT

(1.) This is an appeal under Section 110-D of the Motor Vehicles Act by the claimants against the judgment and order of the Claims Tribunal, Etawah, dismissing the appellants' claim petition filed under Section 110-A of the Motor Vehicles Act, 1939.

(2.) Briefly the facts giving rise to this appeal are that Mahmood a conductor who was in the employment of Raj Kishore, owner of Public Carrier Vehicle No. USF 8823, was killed in an accident which took place on 3-6-1970. Abdul Ghafoor the father of the deceased and Mohan Bibi, foster mother of the deceased, Roopa Begam wife of the deceased and Gulam Kadir and Mohd. Usman minor brothers of Mahmood filed claim petition under Section 110-A of the Motor Vehicles Act, claiming compensation from the owner of the vehicle and the New India Assurance Company with whom the vehicle had been insured. The Claims Tribunal dismissed the claim petition by its order dated 1-10-1973. The Claims Tribunal held that since Smt. Roopa Begam widow of the deceased Mahmood had filed an application for compensation before the Commissioner under the Workmen's Compensation Act 1923 other dependents of the deceased Mahmood could not maintain another claim petition in view of Section 110-AA of the Motor Vehicles Act. On merits the Claims Tribunal held that the vehicle was being driven by Raj Kishore owner himself in a negligent and rash manner resulting in the accident causing the death of Mahmood. The Tribunal found that the owner was liable to pay a sum of Rs. 25000/- to the claimants but it did not award any amount as compensation to the claimants in view of his findings that the claim petition was not maintainable. Aggrieved, the claimants have preferred this appeal against the judgment and order of the Claims Tribunal.

(3.) During the hearing of this appeal, it was brought to our notice that the claimant-appellants failed to take any steps for the owner of the vehicle. The appellants were granted time to take steps for service of notice on Raj Kishore but they failed to do so and the appeal against Raj Kishore was dismissed twice by a learned single Judge, once on 31-7-1978 and then again on 29-10-1979. The claimants did not pursue the appeal and they failed to take steps for service of notice on Raj Kishore owner of the vehicle, with the result there is no appeal against the owner of the vehicle and the order of the Claims Tribunal has become final so far as the owner is concerned. In the circumstances learned counsel for the Insurance Company urged that the present appeal is incompetent and no decree can legally be passed against the Insurance Company alone.