NEW INDIA ASSURANCE COMPANY LTD. Vs. HARESWAR DEV SARMA AND ORS.

JUDGEMENT

(1.) THE insurer's first appeal under Section 110D of the M.V. Act, 1939, is from an award of the Motor Accidents Claims Tribunal, Kamrup.

(2.) ON April 9, 1971, at about 9.30 a.m. one Niranjan Sarma, aged 22 years, was proceeding on his bicycle through the National Highway towards Boroma West near the PWD Sub -Divisional Office when a new truck (chassis only) owned by Shri Tilok Chandra Kachari, respondent No. 2, and driven by Md. Raffique Sheikh, respondent No. 3, knocked him down from behind as a result of which he was injured on his head and he died at the Gauhati Medical College Hospital on the same day at 11.30 p.m. Respondent No. 1, Shri Hareswar Dev Sarma, father of Niranjan Sarma, claimed compensation of Rs. 20,000 only, naming the appellant as the insurer of the vehicle alleging rash and negligent driving. Before the Tribunal, the appellant and respondents Nos. 2 and 3 filed separate written statements. The owner denied that the vehicle was being driven with rashness or negligence; stated that the deceased who was just learning cycling suddenly lost his balance and fell by the hind portion of the truck (chassis) and thus fully contributed towards his death; and that the claim of Rs. 20,000 was excessive ; and that he had no personal liability as the vehicle was fully insured with the appellant. The driver, while supporting the owner, stated that he was neither negligent nor reckless in driving; and that he was not personally liable to pay any compensation. The appellant denied everything except that the vehicle was insured with them and contended that the claim was excessive and without any basis. Four issues were framed, namely, (1) Whether there was a cause of action; (2) Whether Niranjan's death was due to the accident; (3) Whether the accident was due to rash and negligent driving; and (4) Whether and, if so, how much compensation was payable.

(3.) MR . P. Choudhury, the learned counsel for the appellant, canvasses three points before us, namely, (1) that the owner having not been made liable by the Tribunal, the insurer could not be imputed with any liability under the award ; (2) that the award being in lump sum, the Tribunal ought to have fixed it only at such a figure as would earn the claimant an interest of Rs. 80 per month, which was the loss of income suffered by him at the death of his son ; and a sum of Rs. 10,000 would, according to the counsel, he sufficient for the purpose; and (3) that the father alone was not entitled to the entire amount when the mother and brethren of the deceased were alive.