- (1.) THIS appeal under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 14-3-2007, passed by Motor Accident Claims Tribunal/dis trict Judge, Nainital, in MACT Case No. 51/2006, Smt. Neela Devi and others Vs. Baldeo Singh and another.
(2.) BRIEF facts of the case are that deceased Kundan Singh Adhikari was employed as driver on Truck No. HR 38-C/8491 owned by Baldeo Singh. On 5-11-2005 when he was carrying the said truck to Ghaziabad from Bhiwadi he stopped the said truck in the way and got down from it. Suddenly an unknown vehicle dashed him due to which he sustained grievous injuries and he succumbed to the in juries at the spot itself. According to the claimants the deceased used to earn 4. 500/- per month. Therefore, the claimants preferred claim petition for a sum of Rs. 5, 50, 000/- in lieu of death of the deceased. The opposite party No. 1, owner of the offending vehicle contested the claim petition and alleged that the de ceased Kundan Singh was employed as driver on his truck and he used to give him, a monthly salary of Rs. 3, 000/-plus Rs. 50/-towards daily food ex penses. He has admitted the death of the deceased in the accident and al leged that the deceased was having valid driving license at the time of ac cident and the truck was insured with Oriental Insurance Company for the period 10-12-2004 to 9-12- 2005. The opposite party No. 2 Orien tal Insurance Company also contested the claim petition and denied the alle gations of the petitioners and alleged that the deceased himself was driving the truck at the time of accident and he does not fall in the category of third party hence the petition is not maintainable under Section 163-Aof the Motor Vehicles Act. The insurer also alleged that exaggerated income of the deceased has been mentioned by the claimants.
(3.) THE Tribunal on the pleadings of parties framed the following issues in the claim petition : 1- Whether on 5-11-2005, when deceased Kundan Singh Adhikari, who was employed as driver on Truck No. HR 038-C/8491, was going from Bhiwadi to Ghaziabad, he was dashed by some unknown ve hicle in the midnight near Subhash Hotel Sahpur, N. H.-8, Bilaspur, due to which he succumbed to the injuries at the spot ? 2- Whether the accident has oc curred by the use of truck No. HR-38-C/8491 ? 3- Whether on the date of acci dent deceased Kundan Singh Adhikari was driving Truck No HR-38- C/8491 and he does not come in the category of third party ? 4- Whether the petition is not maintainable U/s 163-A of the Motor Vehicles Act ? 5- Whether the owner of the ve hicle has breached the condi tions of insurance policy ? 6- Whether the claimants are en titled to get the compensation ? If so, how much and from whom ? Parties adduced evidence in sup port of their case. The learned Tribunal after hearing learned counsel for the parties and considering the material available on record, decreed the claim petition for a sum of Rs. 4, 07, 700/-along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, against the Ori ental Insurance Company.;