- (1.) THIS appeal has been preferred un der Section 173 of Motor Vehicles Act, 1988 (in short the Act) against the judgment and award, dated 05-09-1998 passed by Motor Accident Claims Tribunal/district Judge Chamoli (in short the Tribunal) in M. A. C. Petition No. 1 of 1994,. Smt. Janki Devi Vs. Dayal Singh and others, whereby the learned Tribunal has awarded compen sation of Rs. 1,00,000/- in favour of the claimant as against the owner and driver of the Bus No. UP-07/0838 along with interest @ 10% per annum. The claim petition against the Insurance Company was dismissed.
(2.) RELEVANT facts of the case are that Sunil Kumar, aged 16 years, a stu dent, son of the claimant, lost his life in a motor vehicle accident on 11-7-1993 at about 9-30 a. m. involving Bus No. UP 07-0838 which was being driven rashly and negligently by its driver. According to the claimant on the fateful day, Sunil Kumar was going on foot to Karanprayag market from his home. When he reached near the bend at Uma Devi temple, he was hit by the bus with the result that Sunil Kumar fell down on the road and the bus itself turned over the boy causing his instan taneous death. The bus was being driven by the cleaner and not the driver. The deceased was a student of class X. Longevity of the family of the deceased was stated to be more than 70 years. The claimant has claimed to tal compensation of Rs. 1,75,000/- on different counts for the death of the de ceased son. O. P. No. 1, owner of the bus, contested the claim petition and filed his written statement. It was asserted that a boy died due to the accident but his name and parentage were not known. It was also stated that the said bus reached Karanprayag at about 9 a. m. and at the relevant time, the bus was going to the Workshop after cross ing the bridge at Karanprayag. As soon as the bus reached near the bend at Uma Devi temple, two boys started doing up-down crossing the road. In the third attempt, a boy named Sunil Kumar look a jump from the upward side and in the process, he was con fronted with the iron weighing machine installed on hilly side of the road and was hung therewith. Seeing this the driver of the bus lost control over the vehicle and the bus over turned but it had no concern with the deceased. Ac cording to him, the deceased died of his own due to hanging with the bal ance. It was denied that Dinesh Chandra was driving the bus at the relevant time and it was asserted that the bus was being driven by driver Mahabir Singh and the police wrongly impli cated Dinesh Chandra, who was wrongly impleaded in the present case. It was also stated that the bus was duly insured, therefore, the liability for com pensation, if any, lay upon the Insur ance Company. The O. P. No. 2 Dinesh Chandra also filed his separate written statement and he took the same stand as was taken in the written statement filed by the O. P. No. 1, owner of bus in question. He has stated that he was the conduc tor in the bus and he was not driving it. He pleaded that in the accident he sustained injuries due to overturning of the bus and became unconscious. He was taken to Government Hospital Karanprayag for treatment. He also pleaded that he was made accused by the police by mistake. He also stated that he did not know about the wherea bouts of the driver after the accident.
(3.) THE Insurance Company con tested the petition by filing its written statement. It has denied the allegations made in the claim petition. It has fur ther pleaded that the claimant has not filed any documentary evidence in sup port of her case. THE claimant and the owner have not furnished the details of insurance policy, cover note etc. there fore the insurer does not accept the claim for compensation. It was also as serted that the insurer reserves its right to take further defence on the basis of necessary facts if disclosed during the pendency of the case by the claimant or owner. On the pleadings of the parties, the learned Tribunal framed as many as five issues in the case. Issue No. 1 re lated to the rash and negligent driving by the driver of the offending bus resulting into death of Sunil Kumar. Issue No. 2 related to the negligence on the part of the deceased. Issue No. 3 re lated to the driving of the bus by the conductor or otherwise. Issue No. 4 related to mechanical failure of the bus and Issue No. 5 related to the relief and compensation.;