P.Basu, J. - (1.) This appeal has tragic background of accidental death of a young man of 27 years, Rajesh Singh, who died on 10.1.1988 when passenger bus No. URN 9428 travelling between Haldwani and Almora fell into a ditch and caught fire bringing about the termination of life of Rajesh Singh being burnt while alive. He was Assistant Engineer drawing a sum of Rs. 2,384.50 per month as salary. The bus was registered in the ownership of Kanta Devi, wife of Lakhan Singh and was hypothecated with the Central Bank of India, Haldwani Branch, Nainital. The bus was insured with New India Assurance Co. Ltd. through Haldwani Branch. It was comprehensive policy issued on 19.5.1987 and was valid till 18.5.1988. To add to the tragedy, the young widow of Rajesh Singh, namely, Kiran Singh was carrying a child in the womb then apart from having given birth to a daughter already. A claim petition consequently was filed on 17.2.1988 before the Motor Accidents Claims Tribunal, Nainital, which by order dated 30.5.1990 has awarded a sum of Rs. 6,25,000 as compensation payable by insurance company along with 12 per cent per annum interest up-to-date. The said relief was given to the claimants under section 110-A of the Motor Vehicles Act, hereinafter referred to as 'the Act'.
(2.) Mr. A.B. Saran, Senior Advocate, assisted by Mr. Vineet Saran and Mr. M.P. Shroff have been heard at considerable length in support of this appeal. A cross- objection has also been filed by the claimants against the aforesaid judgment/order who are represented by Mr. Sankatha Rai, Senior Advocate, assisted by Mr. Sharb Singh, who also have been heard at equal length. The entire record has been perused.
(3.) Mr. A.B. Saran has raised three points for consideration in this appeal, which are: (1) The finding of the Tribunal that the policy in question created indefinite liability is without any basis and the plea of the insurance company to the effect that its liability was limited to Rs. 30,000 per passenger has been wrongly ignored. (2) The possession and control of the vehicle was not with Kanta Devi, but it was transferred by an agreement to Pramod Chand Singh and the day-to- day running was done through Kumaun Motor Operators Union (for short 'KMOU'). The argument proceeded that since under the circumstances a driver also must have been deputed by those who were incharge of movement of the vehicle, the insurance company cannot be fastened with the liability under the policy as the insurance policy was only a contract between the appellant, New India Assurance Co. Ltd. and the registered owner. (3) That in the operative portion of the order of the Tribunal there is a direction to the insurance company alone to make payment of Rs. 6,25,000 which is illegal because the original liability must have been fixed on the owner and then it may have been passed on to the insurance company in accordance with the provisions of section 96 of the old Act.;