K.M. Dayal, J.
1. This first appeal from order (No. 2 of 1977) has been filed by the insurance company against the award of the Motor Accidents Claims Tribunal, Gorakhpur, arising out of Motor Accidents Claim No. 72 of 1975. A cross-objection has been filed by the claimants for enhancement of the compensation.
2. Smt. Hemlata Biswas and her two daughters filed a claim for Rs. 2,41,800 on account of the death of Sri Santosh Kumar Biswas, husband of Srimathi Hemlata Biswas and father of the other claimants.
3. It was alleged that at about 4 p.m. on February 24, 1975, Sri Santosh Kumar Biswas was travelling in a mini bus No. USB 8212, owned by opposite party No. 2, Malkee Singh, and insured by opposite party No. 3, New India Assurance Co. Ltd. The mini bus collided with a motor truck No. UPK 1951, owned by opposite party No. 1, Dilip Kumar Ahuja and insured by opposite party No. 4, the National Insurance Co. Ltd., at Bargadwa trijunction of Gorakhpur Nautanwa highway. It was alleged that the truck was being driven rashly and negligently. In the accident, deceased, Santosh Kumar Biswas was thrown out of the mini bus, sustained injuries and succumbed to the same in the hospital. It was claimed that the average income of the deceased was Rs. 650 per month. The claimants had been put to loss of that income. The damages for mental shock were also claimed. The National Insurance Co. Ltd. and Dilip Kumar Ahuja, insurer and owner of truck No. UPK 1951, denied the accident; in the alternative, they pleaded that the accident took place due to the negligence of the driver of the mini bus. The death of Santosh Kumar Biswas on account of the accident was also denied and the amount of compensation claimed was alleged to be excessive.
4. The defence of opposite parties Nos. 2 and 3, the owner and insurer of the mini bus, were also similar. On issue No. 1 relating to the negligence of the driver of the truck or the mini bus, the court below held that the accident took place entirely due to the rash and negligent driving of truck No. UPK 1951. The accident took place on Gorakhpur Nautanwa highway when the mini bus was speeding towards Nautanwa and the motor truck arrived at this road from the other side. ,
5. The Accidents Claims Tribunal awarded Rs. 3,750 to Smt, Hemlata Biswas, claimant No. 1, payable by the National Insurance Co. Ltd. Rs. 12,138 was awarded to Km. Mannu which was payable by the National Insurance Co. Ltd., opposite party No. 4, and Rs. 11,988 was awarded to Km. Santhu. This amount was to be paid in part by the present appellant. It was directed that the National Insurance Company was liable to the extent of Rs. 6,988 and the balance of Rs. 5,000 was payable by the New India Assurance Co., i.e., the appellant in the present appeal.
6. The appellant has challenged the award of compensation against the New India Assurance Co., on the finding that there was no negligence on the part of the driver of the mini bus No. USB-8212 insured by it. A cross-objection has been filed by the claimant for an enhancement of the claim. They have claimed Rs. 2,13,924 and more.
7. The learned counsel for the appellant raised only one question before us. His contention was that the finding in issue No. 1 was in their favour, i.e., there was no negligence on the part of the driver of the mini bus. The appellant as an insurer was liable to indemnify only the owner or the driver of the mini bus in case they were liable to pay any damage. As the finding of the Tribunal was that the driver of the mini bus was not at fault, the owner or the driver of the same could not be liable. Consequently, the appellant, the insurer of the mini bus, also could not be liable to pay any amount as compensation. The compensation was payable solely by the National Insurance Co. Ltd., which was the insurer of the truck No. UPK 1951, the driver of which was found at fault. His contention appears to be correct.
8. The notices on the National Insurance Co. Ltd. were served personally but they have not put in appearance in the present appeal. Under the circumstances, we have to proceed against them in their absence.
9. The Tribunal has not given any reason to show how the appellant was liable to pay Rs. 5,000. The finding is that the driver of the truck alone was negligent, the award of Rs. 5,000 from the New India Insurance Co. to the appellant was wholly unjustified. Under the circumstances, the award of the Tribunal has to be modified in that respect. Kumari Santhu has been awarded a sum of Rs. 11,988 out of which Rs. 6,988 was awarded against the National Insurance Co. and Rs. 5,000 against the New India Assurance Co., the appellant. That award is modified and the entire amount of Rs. 11,988 will be payable by the National Insurance Co. and the appellant will not be liable to pay any amount.
10. Coming to the cross-objection, the claimants have claimed furtheramount. As the New India Assurance Co., the appellant, has not beenheld liable for any amount as compensation, no amount can be awardedeven in cross-objection against the appellant. The National Insurance Co.Ltd. has not filed any appeal; consequently, no cross-objection can be filedagainst it. It is only a co-respondent. In the result, the cross-objection isnot maintainable.
11. In the result, the appeal is allowed. The award of the Tribunal is modified to the extent that the entire amount of Rs. 11,988 payable to Kumari Santhu would be payable by the National Insurance Co. Ltd., respondent No. 4, and no amount will be payable by the appellant. The stay order is discharged. The cross-objection is dismissed. The parties are directed to bear their own costs.