SHARIEF JAN Vs. JASBIR SINGH

JUDGEMENT

(1.) THIS appeal is directed against a judgment dated 23.8.1993 in File No.

(2.) /Claim Petition of 1990 in the case Sharief Jan and Ors Vs. Jasbir Singh & Ors whereby the claim petition filed by the appellants was dismissed by the learned Motor Accident Claims Tribunal, Poonch. Brief facts leading to the filing of the appeal are that the appellants filed claim petition in terms of section 166 of Motor Vehicles Act for claiming compensation in respect of the death of Manzoor Hussain, their son, aged 18 years, who is alleged to have died in a road accident involving Truck No. JKP -5275 at Gundi Tehsil Haveli (Poonch) on 2.4.90. It was alleged in the petition by the appellants that Manzoor Hussain deceased was travelling in truck No. JKP 5275 on 2.4.90 and that the truck was driven rashly and negligently by its driver Jeet Singh resulting in the accident and the consequential death of deceased Manzoor Hussain. The claim was resisted by respondents. Respondent No. 1, the owner and respondent No.2 the driver filed separate written statements. Similarly respondent No.3 insurer filed its own separate written statement. On the pleadings of the parties, the following four issues were framed by the Tribunal vide its order dated 18.2.1991: -

(3.) BEFORE we proceed any further, it must be clearly stated and observed that the Tribunal committed a patent error and irregularity by invoking the provisions of Motor Vehicles Act, 1939 for dismissing its claim petition, even though the Motor Vehicles Act. 1988 (Central Act No. 59 of 1988) had come to be enforced, extended and applied in the meanwhile. The claim petition as is apparent was filed on 23,5,90, at a point of time when the Motor Vehicles Act, 1988 already stood extended, enforced and applied repealing Motor Vehicles Act, 1939. Yet for the most untenable and unexplained reasons, the Tribunal proceeded to invoke Motor Vehicles Act, 1939. particularly section 95 thereof to hold that the insurer was not liable to compensate the claim petitioners because of the alleged fact that the deceased was being carried in a good vehicle. Had the Tribunal cared to keep this legal development into sight, it should have occurred to it that by the coming into force of Motor Vehicles Act, 1988, section 147 of the New Act which transformed the, concept of issuance of insurance policy with regard to goods vehicles as well and that the prohibition contained in section 95 of the Old Act with regard to the exception of coverage of liability relating to goods vehicles was done away with in section 147 of the new Act. The proviso in section 95 of the old Act to the effect that the policy of insurance shall not be required to cover certain liabilities was drastically amended and modified in section 147 of the new Act with its limited application which reads as under. -