Bishan Narain, J. - (1.) Atma Ram died as a result of a running down accident and his widow and miner children (one son aged 4 and a daughter aged 5 1/2 years) filed a suit for the recovery of Rs. 50,000/- as compensation under the Fatal Accidents Act against Malik Chand the owner of the station wagon concerned and the Vanguard Fire and General Insurance Company, Limited with which the vehicle was insured. The trial court decreed the claim in full against both the defendants. Malik Chand did not file any appeal against this decree but the Insurance Company has filed this appeal.
(2.) The plaintiffs case is this. Atma Ram aged about 29 when going on a bicycle on 30th of August, 1950, some time between 10 and 11 P.M. was run down by a station wagon DLA: 1952 near the Ice Factory, Chowk Sabzi Mandi, Delhi. In this accident he received serious injuries. He was immediately removed to the Irwin Hospital where he died of the injuries on the night of 4th and 5th September, 1950. The accident was caused by the rash and negligent driving of Ishwar Dass, Driver of the vehicle which belonged to Malik Chand defendant in whose employment Ishwar Dass was. The vehicle was insured with the appellant Company. It is stated in the plaint that the police had registered a case against Ishwar Dass under Section 279/338, Indian Penal Code but he was absconding in para 13 of the plaint it is prayed that a notice be issued to the Insurance Company to which it was entitled under the law as the decree passed in the suit is executable against it as if it was judgment- debtor.
(3.) Both the defendants contested the suit. They filed separate written statements. Both of them controverted the plaintiffs' case substantially on the same grounds. Malik Chand admitted that Ishwar Dass was in his employment at the time of the accident but pleaded that he was not acting within the scope of his employment at that time and further that in any case the injury was not caused by negligent and rash driving of Ishwar Dass. In the alternative it' was pleaded that the deceased was guilty of contributory negligence. He also pleaded that the compensation claimed was highly exaggerated and that in any case the Insurance Company was liable to pay the same. The Insurance Company admitted the insurance but pleaded that at the time of the accident the vehicle was being used to carry goods and therefore the Company was absolved from liability. It denied negligent and rash driving by the driver and pleaded contributory negligence of the deceased. The amount of compensation claimed was pleaded to be excessive. On these pleadings the trial court framed the following issues : -- 1. Whether the plaintiffs are the only heirs of the deceased Shri Atma Ram? 2. Were the injuries caused to Shri Atma Ram caused by rash and negligent driving by Ishwar Dass? And if not, what is its effect? 3. Was the said Ishwar Dass at the time of injuries working during the course of his employment with defendant No. 1 or within the scope of his duty and whether the defendant No. 1 is liable for that reason ? 4. Was the death of the deceased a direct result of the injuries caused to him by the accident and if not, what is its effect? 5. To what damages, if any, are the plaintiffs entitled? 6. Was the deceased guilty of contributory negligence? 7. Was the vehicle D.L.A. 1952 insured with defendant No. 2 as a private 7 seater vehicle? 8. Whether the vehicle at the time of accident was being used to carry goods as a public Or private carrier? If so, whether defendant No. 2 is not liable for that reason? 9. Relief. Issues Nos. 1 to 6 relate to the plaintiffs while issues Nos. 7 and 8 are relevant between the defen- dants inter se.;