- (1.) K. S. Varma, J. The present appeal under S. 110 of the Motor Vehicles Act, 1939 is directed against the award given by B. B. Srivastava, District Judge as the Motor Accidents Claim Tribunal, Barabanki. The facts giving rise to the appeal are that the late Sri Rajendra Swarup Saxena was posted in Barabanki as an overseer at the relevant time in the Public Works Department. On 25-4-1973 when he was proceeding on a motor cycle on Lucknow-Faizabad Road, private passenger bus U. S. D. 468 came from the opposite direction and collided with the motor cycle at Naka Satrikh. The deceased Rajendra Swarup Saxena sustained fatal injuries due to accident and died on the spot. The passenger bus USD 468 was driven by driver Mohammad Sami. At the time of the accident the bus belonged to Liaqat Ali Khan and was driven by Mohammad Sami his driver. The said bus was insured with the oriental Fire and General Insurance Co. Ltd. , Lucknow. The deceased at the time of his death left behind him his widow Srimati Mithlesh, a son Khagendra Vijai and his mother Srimati Chandrawati, Shrimati Chandravati and Khagendra Vijai have moved the claim petition for compensation and claimed Rs. 85,000/ -. The claim was made by the applicants on their behalf and also on behalf of Shrimati Mithlesh widow of the deceased. Shrimati Mithlesh did not join the claim and she was arrayed as an opposite party. The claim put forward on behalf of the heirs of the deceased, referred to above, was contested by Liaqat Ali Khan on the ground that he had given the said vehicle on cow tract to Farid Ahmad and Atiq Ahmad' for three years under an agreement dated 28-11-1972. At the time of the accident the said vehicle was driven by Mohammad Sami, the driver of Farid Ahmad and Atiq Ahmad Since Farid Ahmad and Atiq Ahmad had not been Joined as opposite parties, the claim was bad for non-joinder of parties. It was also contended on behalf of Liaqat Ali Khan that the accident occurred due to the negligence of the deceased himself and as such no compensation could be claimed by the representatives of the deceased. It was also maintained that the claim was barred by time and that, at any rate, the claim made was excessive. The claim put forward by the heirs of the deceased was also contested by the Oriental Fire and General Insurance Company on the ground that the bus in question was being driven on the right side of the road with normal speed and that the deceased was himself responsible for the alleged accident. It was also contended on behalf of the Insurance company that it was not liable for any compensation as on the date of the accident the insured vehicle was not in possession of the owner. Mohammad Sami contested the claim on the ground that he was not driving the bus in a rash and negligent manner and the accident occurred on account of the negligence of the deceased.
(2.) THE claims Tribunal framed the following issues: - "1. Whether the application suffers from the defect of non-joinder of Farid Ahmad and Atiq Ahmad? If so, its effect? 2. Whether the opposite party No. 1 executed a contract of the vehicle in favour of Farid Ahmad and Atiq Ahmad, as alleged? If so, its effect? Whether the application is barred by time? Whether the opposite party No. 1 is not liable to pay the compensation, as alleged?
(3.) WHETHER the apposite party No. 3 is not liable to pay compensation, as alleged? Whether the accident was the result of rash and negligent driving of opposite party No. 2? If so its effect?;