JAIN, J. - (1.) THE claimants - appellants have filed this appeal against the judgment/award dated 8. 10. 1993 passed by the Motor Accident Claims Tribunal (I) Ajmer in Motor Accident Claims Case No. 53 of 1983, whereby the claim application filed by the claimants-appellants was dismissed.
(2.) THE claimants-appellants filed an application under Section 110-A of the Motor Vehicles Act, 1939 for compensation before the Motor Accident Claims Tribunal, Ajmer in respect of death of Kanha, who died in motor accident, took place on 11. 2. 1983. THE claim application was filed against the driver and owner of vehicle Nathu Lal and Prem Kumar respectively and the National Insurance Company Limited. The driver Nathu Lal and owner Prem Kumar filed their joint reply to the application for compensation, wherein they contested the application and submitted that there was no negligence on the part of driver of the vehicle. The monthly income of the deceased was also denied. In para No. 6 of the reply, it was submitted that the vehicle was insured with the National Insurance Company. The National Insurance Company filed its written reply to the claim application and submitted that the vehicle involved in the accident, the owner of which has been pleaded to be Prem Kumar, is in fact insured in the name of Ram Narain Gupta, the registered owner of the vehicle. It was also submitted that insured Ram Narain gupta has not been impleaded as a party and as such the insurance company is not liable to indemnify and liability of a person other than insured. A copy of insurance cover note of the vehicle was also placed on record showing the name of insured Ram Narain. n para No. 6 of the reply of the Insurance Company, it was specifically submitted that the vehicle No. RJR-4073 was insured in the name of Ram Narain gupta and he had already transferred the said vehicle. The insured had no interest in the vehicle on the date of accident and as such the insurance company is not liable to indemnify the liability of compensation. Learned Tribunal framed 11 issues and fixed the case for applicant's evidence. However, inspite of number of opportunities given to claimants for producing evidence, the same was not produced. Hence, the evidence of the applicants was closed on 18. 2. 1993. The applicant thereafter moved an application on 19. 5. 1993 for allowing the applicants to led evidence. The said application was dismissed by the Tribunal vide order dated 22. 9. 1993. The non-applicants No. 1 & 2 submitted on 22. 9. 1993 that they do not want to produce any evidence. The non-applicant No. 3 the insurance company moved an application No. 3 the insurance company moved an application under Section 170 of the M. V. Act to allow the Insurance Company to contest the matter on merits as non-applicants No. 1 & 2 are not contesting the matter. The Tribunal dismissed the application on 22. 9. 1993 observing that the non-applicant Nos. 1 & 2 are duly represented by their counsel and they have also filed reply to the claim application and from the very beginning they are contesting the matter. The insurance policy was placed on record which was admitted by counsel for applicants and as such it was exhibited d-1. The non- applicant No. 3 did not produce any other oral or documentary evidence and close its evidence. The Tribunal therefore, fixed the case for final arguments. After considering the submissions of learned counsel for the parties, the Tribunal dismissed the claim application filed by claimant appellants vide impugned judgment dated 8. 10. 1993. Being aggrieved with the same, the present appeal has been filed before this Court.
(3.) I have considered the submissions of the learned counsel for the parties and examined the impugned judgment as well as the record of the Tribunal. There is no dispute that none of the parties i. e. claimants or non-claimants, produced and oral or documentary evidence except Insurance Cover Note Ex. D-1 produced by Insurance company. The certified copies of FIR, Post Mortem Report and Charge-sheet were filed, but they were not put up for admission on denial and they were not marked exhibit in the case. In absence of oral and documentary evidence, the learned Tribunal observed that the certified copies of the FIR, post-mortem report and charge-sheet were admissible in evidence in the claim application and accordingly on that basis held that accident took place because of negligence of the vehicle's driver non-applicant No. 1 Nathu Lal and claimants have suffered "loss of income" and "love and affection" due to death of deceased in this motor accident and for the same assessed the total amount of compensation under the different heads as Rs. 1,00,000/ -. However, while deciding the issue Nos. 7 & 9, the learned Tribunal observed that the registration certificate of he vehicle has not been produced, therefore, it cannot be said that the non-applicant No. 2 Prem Kumar is the owner of the vehicle. The insurance policy, Ex. D-1 which has been produced shows that the name of insured is Ram Narain Gupta, therefore, as per insurance policy, it cannot be said that the non-applicant No. 2 Prem Kumar is the owner of the vehicle. Shri Ram Narain gupta has not been impleaded as a party in the claim application. The insurance of the vehicle was not got done by Prem Kumar, non-applicant No. 2. In absence of evidence it cannot be held that non-applicant No. 1 driver was in the employment of non-applicant No. 2. Consequently, issues No. 7 & 9 were decided against the applicants and in favour of the non- applicants. The appellants filed an appeal in this Court on 20. 12. 1993, along with the application under Order 1 rule 10 read with Section 151 CPC seeking permission for impleading the registered owner Ram Narain Gupta as a party respondent No. 2/2 in the memo of appeal. The order sheets of this court shows that no order was passed on the application dated 20. 12. 1993 seeking permission to implead Ram Narain as party respondent No. 2/2 in appeal. However, the appeal was admitted by this Court on 23. 9. 1994 and notices were ordered to be issued to the respondents. Ram Narain Gupta was impleaded as respondent No. 2/2 in the memo of appeal without any order on the application filed on 20. 12. 1993, therefore, notice of the appeal, was also served on Shri Ram Narain. After service of notice upon he respondent No. 2/1 Prem Kumar entered his appearance in this Court through his advocate on 19. 3. 1996 and Ram Narain respondent No. 2/2 entered his appearance in this Court on 7. 7. 95 through his advocate. ;