- (1.) B. S. Verma, J. Since both these appeals under Section 173 of the Motor Vehicles Act, 1988 (for short the Act) arise out of the common judg ment and award dated 29-7-1999 passed by the Motor Accident Claims Tribunal / III Additional District Judge, Nainital (for short the Tribunal) in Mo tor Accident Claim Petition No. 356 of 1995 Smt. Parwati Devi and others Vs State of U. P. and others, whereby the compensation of Rs. 50. 000/- has been awarded in favour of the claimants and respondent Smt. Bhawani Devi. The compensation was. ordered to be pay able by the driver Kishan Lal. Aggrieved by the said award, the claimants have filed A. O. No. 103 of 2001 for enhance ment of compensation, while the driver of the vehicle has preferred A. O. No. 852 of 2001. The controversy to be deter mined in these two appeals are similar, therefore, for the sake of convenience, both the appeals are being decided to gether by this common judgment.
(2.) DURING the pendency of these ap peals, Smt. Bhawani Devi, the mother of the deceased Pushkar Singh has died and her legal representatives, i. e. claim ants, are already on record, therefore, her name was ordered to be deleted from the array of respondent in both the ap peals. Facts giving rise to these appeals, in brief, are that Pushkar Singh son of late Sri Gopal Singh (deceased) aged 35 years and earning salary of Rs. 2,705/-per month from government service was on government duty on 8-8-1995. He was employed as Peon in the Soil Con servation Department. On the fateful day, the Soil Conservation Officer was going to Lucknow and he was accom panied by the deceased upto Railway Station Lalkuan. The Jeep No. URN-8797 was being driven by its driver Sri Kishan Lal. After the officer concerned boarded the train, the deceased was re turning by the said Jeep, which was being driven rashly and negligently by its driver with the result the jeep met with an accident at Kuliyalpur, Gali No. 8 Nawabi Road, Haldwani on 8-8-1995 at about 10-15 p. m. Pushkar Singh suffered grievous injuries and was taken to S. S. Jeena Base Hospital Haldwani and then the injured was referred to Bareilly for treatment. At Bareilly, the injured was advised to be taken to Delhi. The deceased thereafter succumbed to his in juries and his Post Mortem was con ducted at Base Hospital, Haldwani. The claimants are the widow and minor son and daughter of the deceased. The claimants filed claim petition for com pensation of Rs. Six lacs and also claimed interim compensation on the principle of no- fault liability amounting to Rs. 50,000/- The opposite nos. 1 and 2, The State and the Soil Conservation Officer filed their joint written statement (paper no. 16-Kha ). In the Written Statement, both the opposite parties have admitted the name, parentage of the deceased. The age of deceased was stated to be 40 years and it was admitted that the deceased was a class IV employee un der the Soil Conservation Officer-O. P. No. 2. It was asserted that the accident took place at 11-00 p. m. It was also asserted that the driver of the Jeep was directed to park the jeep in the office of the Soil Conservation Officer, Haldwani, but the deceased and the driver in vio lation of the directions took the jeep to wards Nawabi Road Haldwani and dashed the jeep against the K. M. O. U. bus with the result the deceased suffered serious injuries and later-on died. In paragraph no. 23, it has been asserted that the deceased as well as the driver of the jeep violated the directions of the respondent no. 2 and took the Jeep to wards Nawabi Road out of their own will and dashed it with K. M. O. U. bus with the result the Jeep suffered heavy damages and deceased Pushkar Singh ultimately lost his life. !t has also been asserted that departmental inquiry was held against the driver of the Jeep and he was removed from service by the re spondent no. 2. Since respondent no. 2 was not the appointing authority of the driver, the Additional Director of Agricul ture Pauri set aside the order of termi nation and fresh inquiry was ordered. The driver was held guilty of the charges levelled against him and he was pun ished with other punishment by the Ap pointing Authority. It was also asserted that the Jeep driver was a necessary party, therefore, the petition is bad for non-joinder of driver of the Jeep.
(3.) THE driver of the Jeep has been arrayed as respondent O. P. No. 4 in the claim petition, who filed his written statement 36-Kha and contested the claim petition. In the additional pleas, it has been stated that on the fateful day the driver was on his official duty with departmental Jeep No. URN-8797 and after the Soil Conservation Officer left for Lucknow by train at Lalkuan, the de ceased and he both returned to Haldwani side. He also asserted that at Haldwani, he had to deliver one letter addressed to Nandan Singh Bisht, Tech nical Assistant, who used to reside in Mohalla Mukhani and then to park the. Jeep at Nainital Head Office as per di rections of his boss. Unfortunately, when the driver was performing his duty, the said accident occurred. He also stated that earlier also he used to park the ve hicle after leaving his Officer at Lalkuan railway station. Regarding the accident, he asserted that the accident occurred due to rains and as there was no wipers fitted in the screen of vehicle, hence due to mechanical fault, the accident hap pened. He also asserted that he had un dergone departmental inquiry and after having exonerated from the charges, he has been re-instated in the department. In the last, he has pleaded that since the answering opposite party was performing his official duty, therefore, com pensation; if any, is liable to be paid by the Department/state. The learned Tribunal framed fol lowing lssues : 1. Whether the Jeep No. URN 8797 was being driven rashly and neg ligently by its driver at the time of the alleged accident? 2. Whether at the time of alleged accident the driver was driving the government jeep in the course of his employment ? If not, then its effect ? 3. Whether the driver of the jeep is a necessary party in the claim petition ? 4. Whether the petition is bad due to misjoinder of O. R No. 2 i. e. Soil Conservation Officer, Nainital ? 5. What amount of compensation, if any, the claimants or anyone of them is entitled to receive from which Q. Ps. ?;