VANGAURD INSURANCE CO. LTD. Vs. SHAFALI MNKHERJI AND ORS.

JUDGEMENT

(1.) A public Carrier Motor Truck bearing No. USJ 4081 belonged to Respondent No. 5 Triloki Nath Jaiota Respondent No. 6 Babu Lal was its driver. This truck met with an accident on the 14th of February 1950. It was travelling on the Jail Road in Lucknow from north to south when on the junction of that road with Alambagh Road it turned on the right towards west. One Shiba Bilas Mukherjee was travelling on a bicycle on that road on the left side of the road by the side of a Nala. i.e. a drain in the north. He was coming from west to east. The truck dashed against him. He tried to save himself so much so that he even crossed the Nala and then struck against the wire fencing of the compound of the house on the other side of the Nala. The truck reached even there with the result that he was crushed and died as a result of the accident. He died almost instantaneously as a result of shock and multiple injuries including fracture of ribs, heart, lungs and liver wounds. The position as to how the accident occurred would become clear from a sketch map of the locality on page 6 of the printed paper book.

(2.) THE vehicle was insured against third party risk with the Appellant insurance company. The result was that a suit was filed by the heirs of the deceased Shiba Bilas Mukherjee against the owner of the truck, the driver and the insurance company. The heirs on whose behalf the suit was filed were Mrs. Shafali Mukherjee widow of the deceased, Dilip Kumar Mukherjee and Gautam Mukherjee, minor sons of the deceased and Miss Bannya Mukherjee, a minor daughter of the deceased. The claim was for a sum of Rs 40.000/. The suit was contested by all the Defendants and the following issues were struck for determination in the case which would indicate the pleas taken before the learned Civil Judge who tried the case:

(3.) THE findings of the learned Civil Judge were that the accident was caused by the negligence of the driver ; that it was not caused by any unpreventable cause and that there was no contributory negligence on the part of the deceased. As to the amount though the claim was made for Rs. 40,000/ -the claim was decreed for a sum of Rs. 20,000/ - only. It is against this judgment and decree passed as a result thereof that this appeal has been filed by the insurance company. The legal representatives of the deceased are Respondents 1 to 4 to this appeal. The owner of the truck is Respondent No. 5 and the driver is Respondent No. 6.