S.C.MOHAPATRA,J. - (1.) THESE three appeals under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') arise out of a common award under Section 110-B of the Act, one by claimants, another by the owner of the vehicle and third by the Insurer. Since the parties are the same and the appeals arise out of the common order and most of the questions are same, they are heard together and are disposed of by this judgment.
(2.) OWNER 's appeal has been dismissed for default. Mr. B.D. Madhayan, Advocate, learned Counsel stated that the three appeals were being listed periodically for hearing. On the date the appeal of the owner was dismissed for default, he had inadvertently missed the list, he could not appear when appeal was called for hearing. Other two appeals, which are to be heard together with this appeal, however, have not been disposed of on that day. In such circumstances it is submitted that owner should not suffer on account of the mistake of the lawyer on whom he had trusted and had put reliance that the appeal would be argued effectively alongwith others two appeals. If two other appeals would have been disposed of that day, we might not have entertained such submission. When other two appeals have not been disposed of as yet, interest of justice would be served in case owner of the truck is also given opportunity to be heard on merit of the appeal. Accordingly, we recall order of dismissal and restore First Appeal No. 95 of 1979, which is to be heard along with other two appeals. Claimants are widow of the deceased aged 19 years and his parents. Their case is that deceased aged 21 years, who is only son of his parents, was employed by his sister as driver of their tractor. He went with the tractor to repairing shop. On 3/4.10.1976 at about 3.30 a.m., when deceased was sleeping in front of tractor at repairing shop, he was run over by the truck U.P.G. 5269 on account of negligence of the driver as a result of which sustaining fatal injuries, deceased succumbed at the hospital. Therefore, they claimed compensation of Rs. 4,82,000/- towards loss of dependency, affection, care consortium of all, companionship of the wife and funeral expenses.
(3.) DRIVER , owner and insurer against whom claim was made stated their cases separately, while accepting accident and death on account of the same, their case is that the truck was coming from Mathura side and proceeding towards Banjara side. At the Mathura-Banjara Injunction it took a turn to proceed. At that time the truck went towards the right. Finding some persons sleeping by the side of the road, who may be run over if the truck proceeds, driver swerved the truck to the left. At that time the armed broke and driver had no control over the steering wheel. Truck, which was not under control of driver, went towards the tractor repairing shop and ran over two persons including the deceased. Thus, there was no negligence of the driver and they are not liable. Deceased attributed to the accident as he was sleeping by the side of the Road owner pleaded that he not having authorised the driver to drive the truck, was not liable. Insurer claimed that in case liability is fixed on the Owner, it would be liable to the extent of Rs. 50,000/- only.;