UNITED INDIA INSURANCE CO LTD Vs. GANGADHAR SAHOO

JUDGEMENT

(1.) The judgment dated 10.12.1999 by the learned single Judge in Misc. Appeal No. 675 of 1996 is under challenge.

(2.) Respondents in this A.H.O. were the claimants in Misc. (A) Case No. 234 of 1994 (D) of the court of Second M.A.C.T., Northern Division, Sambalpur. They filed that application under section 166 of Motor Vehicles Act, 1988 (in short 'the Act') with the contention that on 18/19.7.1994 late Tankadhar Sahoo (son of claimant No. 1, husband of claimant No. 2 and father of claimant Nos. 3 to 5) while travelling in a goods vehicle, i.e., a truck bearing registration No. OR 15-A 4731, suffered death due to rash and negligent driving of the said truck and the accident thereof. The owner of the truck, respondent No. 6 in this A.H.O. did not contest the case and has remained ex pane. Appellant as opposite party No. 2 contested the claim and inter alia, stated that it has no liability to pay compensation as the deceased was owner of the goods moving in the truck. The Claims Tribunal decided that the accident was due to rash and negligent driving of the truck and, therefore, the claimants are entitled to compensation. He quantified the amount of compensation at Rs. 72,000 (rupees seventy-two thousand). The Claims Tribunal exonerated the appellant from payment of compensation on the aforesaid defence and saddled the liability with the owner of the vehicle. The claimants challenged that award in Misc. Appeal No. 675 of 1996 with the prayer to enhance the quantum of compensation and to saddle the liability with the appellant. Owner of the truck was made respondent No. 1 in that misc. appeal. There is nothing on record to indicate that after his appearance in the appeal, the owner of the truck either filed a cross-objection or preferred any separate appeal challenging the award passed on 12.6.1996 by Second M.A.C.T., Northern Division, Sambalpur. However, it appears from the impugned judgment that the said owner/respondent participated in the hearing of the misc. appeal.

(3.) After hearing the parties, the learned single Judge delivered the impugned judgment on 10.12.1999. Learned single Judge upheld the finding of the Tribunal regarding negligence of the driver and liability for payment of compensation. The learned single Judge disputed to the factual finding regarding the quantum of income of the deceased and he determined the compensation accordingly at Rs. 1,90,000 (rupees one lakh ninety thousand). Learned single Judge considered the question of liability between the owner of the truck and the insurer; and referring to the decision in the case of Divisional Manager, Oriental Insurance Co. Ltd. v. Jasoda Mohanta, 1997 ACJ 284 (Orissa), held that in view of provision in section 147 of the Motor Vehicles Act, 1988 the insurance company is liable to pay the compensation and the owner is protected because of validity of the insurance policy.