T. S. Misra, J. - (1.) THIS appeal arises out of a fatal accident case. One Mahesh Vijai Singh left his house situated in Bazar Jhau Lal for Ghasiyari Mandi, Lucknow on the night intervening 4th and 5th May, 1968 at about 9.40 P.M. He was going on foot. When he reached Kothi No. 16 on R. K. Tandon Road, Lucknow in front of Kotwali, Qaiserbagh, he was knocked down by motor-cycle No. UPZ 2719 which was being driven by Reoti Raman Rastogi. The injuries which he sustained proved to be fatal and he died after about four hours of the accident. He was survived by his widow, a son and a daughter who were his dependents. Shrimati Ishwar Devi, his widow, was about 50 years old whereas his daughter Km. Kumkum was 16 years old and his son Dinesh Kumar was 14 years old. Mahesh Vijai Singh, the deceased, was a licensed typist. He carried on his profession in the premises of this Court at Lucknow and it was alleged that his monthly income therefrom was about Rs. 400 per month. Smt. Ishwar Devi filed a claim of compensation for Rs. 50,000 under S. 100-A of the Motor Vehicles Act on 3rd July, 1968 before the Motor Accidents Claims Tribunal, Lucknow.
(2.) THIS petition was contested by Reoti Raman and Oriental Fire and General Insurance Co. Ltd., the opposite parties 1 and 2 respectively. They filed separate written statements. Reoti Raman pleaded inter alia that the widow of the deceased had not made other dependants as parties and was not entitled to claim compensation on behalf of them. He also pleaded that the accident in question did not take place because of his negligence or rash driving; rather the deceased, who was walking on the footpath on the left side, suddenly changed his mind and tried to cross the road when the motor-cycle of the contesting defendant Reoti Raman had come very close to him and in spite of applying brakes he could not avert the accident. It was submitted that the compensation was highly exaggerated. The Insurance Company pleaded that the motor-cycle No. UPZ 2719 was insured for the period 11th February, 1968 to 10th February, 1969 for one year with them and Reoti Raman had a learner' s licence from August 1967 to October, 1967 but had no licence whatsoever from November 1967 till 9th May, 1968. He obtained a learner' s licence from 10th May, 1968 to 9th August, 1968 and later on secured a permanent licence of driving on 5th September, 1968. It was, therefore, contended that the Insurance Company was not liable for any claim or compensation because Reoti Raman had no licence on the date of the accident. The Tribunal held that on the facts established it could not be said that when the deceased turned towards the road there was sufficient distance between him and the motor-cycle and the motor-cyclist could have avoided the accident by the exercise of requisite care and caution; hence it could not be said that Reoti Raman was guilty of negligence. It was also held that the motor-cycle was not being driven rashly or negligently by Reoti Raman; rather the accident took place because Mahesh Vijai Singh, the deceased, abruptly turned towards the road and the distance between him and the motor-cycle was not such that the driver could have avoided the accident. Further, it was held that Reoti Raman had no licence on the date of the accident because he had not renewed his learner' s licence. He had also not obtained permanent licence. He had thus contravened the provisions of the Motor Vehicles Act. He had been convicted and sentenced under S. 112 of the Motor Vehicles Act. However, since he was not disqualified for holding or obtaining licence, it could not be said that under the terms of the policy the Insurance Company was not liable. The applicant was, however, held not to be entitled to any compensation because Reoti Raman was not found to be guilty of any negligence.
(3.) THE contention that the application was not maintainable was rejected on the finding that the application for compensation had been filed by the widow on her behalf as also on behalf of her son and daughter but the application was rejected on the ground that it was not established that Reoti Raman was driving the vehicle negligently and rashly at the material time. Aggrieved, Smt. Ishwar Devi has preferred this appeal. The following questions arise for determination of the appeal : (1) Whether Reoti Raman respondent No. 1 was driving the vehicle negligently and rashly? (2) Whether Reoti Raman was liable to pay compensation on the ground that he was driving the vehicle without a licence? (3) Whether Oriental Fire and General Insurance Co. Ltd., the respondent No. 2, is liable to pay any compensation to the appellant? (4) To what amount of damages, if any is the appellant entitled? Point No. 1;