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Oriental Fire and General Insurance Co. Ltd. Vs. Kasturi Lall and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal from Order No. 10 of 1964
Judge
Reported in[1969]39CompCas682(P& H)
ActsMotor Vehicles Act, 1939 - Sections 96 and 110
AppellantOriental Fire and General Insurance Co. Ltd.
RespondentKasturi Lall and ors.
Appellant Advocate Muneshwar Puri, Adv.
Respondent Advocate M.R. Agnihotri, Adv.
Cases ReferredNew India AssuranceCo. Ltd. v. Sharfi Devi
Excerpt:
.....lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - des raj pleaded that the accident was not caused by any negligent act of his driver, kulwant rai, who tried his best to avoid the accident but due to sudden dazzling light of the car approaching from the opposite side he lost control of the vehicle resulting in the unfortunate occurrence......the statement of the above witness. he explained that the man who was sitting on the top of the truck struck against the neem tree and his head was chopped off and thrown in a nearby ditch. the description of the accident as given by them left no doubt in my mind that the driver of the truck was negligent in the performance of his duties. the truck was going on the g.t. road and as such there was enough room forthe driver to get out of the range of the car's dazzling light and to save the truck from running into the culvert and then into the neem tree. the fact that he was not able to control the truck within a reasonable distance shows that he was going fast. the tribunal was thus right in observing as it did that the accident was caused due to the negligence of the driver of the.....
Judgment:

P.D. Sharma, J.

1. This judgment will dispose of two first appeals, one preferred by Oriental Fire and General Insurance Co. Ltd. (No. 10 of 1964), and the other by Des Raj (No. 28 of 1964) against an award made by the Tribunal under the provisions of the Motor Vehicles Act, hereinafterreferred to as the Act, by which a sum of Rs. 3,600 was made payable as compensation by the first of them to Kasturi Lal. Des Raj, appellant, was the owner of truck No. PNF. 5509 and had insured it with Messrs. Oriental Fire and General Insurance Co. Ltd. Kulwant Rai was his driver. The truck net with a serious accident on the G. T. Road between Panipat and Sonepat on 10th November, 1961, causing the death of Sham Lal who was travelling in the truck at the time. Kasturi Lal, father of deceased, filed an application under Section 110 of the Act before the Tribunal for grant of Rs. 50,000 as compensation. The deceased was carrying the wheat belonging to Messrs. Roshan Lal Kasturi Lal at the time of the accident to Delhi. He is alleged to be one of the proprietors of this firm. The accident is said to have been caused due to negligence of the driver of the truck.

2. The Oriental Fire and General Insurance Co. Ltd., insurers, pleaded that in terms of the policy they were not liable to pay any compensation to the heirs and the dependents of the deceased, Sham Lal. Des Raj pleaded that the accident was not caused by any negligent act of his driver, Kulwant Rai, who tried his best to avoid the accident but due to sudden dazzling light of the car approaching from the opposite side he lost control of the vehicle resulting in the unfortunate occurrence. He further urged that Sham Lal, deceased, was not one of the proprietors of Messrs. Roshan Lal Kasturi Lal, whose bags of wheat were being carried at the time in the truck. He finally maintained that the insurers were responsible for payment of the compensation, if any, allowed to the applicant.

3. The Tribunal framed the following issues :--

1. Whether the accident was due to the negligence of the driver (PNF-5509) on 10-11-1961 ?

2. What is the quantum of compensation due, if any, and from whom to whom ?

3. Relief.

4. He came to the conclusion that the driver of the truck was 50 per cent. responsible for the accident and further held that the insurers in terms of the insurance policy and Section 96 of the Act were responsible for payment of compensation which he assessed at Rs. 3,600 to the applicant.

5. The learned counsel for Messrs. Oriental Fire and General Insurance Co. Ltd. urged that in Section 96 of the Act, the appellants were not liable to pay the compensation to the heirs of the deceased on behalf of the owner of the truck because the deceased was not being carried in the truck for hire or reward or by reason of or in pursuance of a contract of employment. He relied on (1) a Full Bench decision of this court in Oriental Fire and General Instance Co. Ltd. v. Gurdev Kaur, [1967] 37 Comp. Cas. 577; [1967] P.L.R. 461 and (2) New India AssuranceCo. Ltd. v. Sharfi Devi, F.A.O. 128 of 1961 decided on 19th May, 1967 which no doubt support him. The learned counsel for Des Raj, owner of the truck, on the other hand, maintained that Sham Lal, deceased, was no proprietor of Messrs. Roshan Lal Kasturi Lal, consignors, but was in their employment when their goods were being carried on hire in the truck to Delhi at the time of the accident.

6. There is hardly any evidence on the record to substantiate his contention. On the other hand, Kasturi Lal, A.W. 6, in his statement unequivocally brought out that the deceased was also a proprietor of the consignor-firm and thus owned the wheat which was being carried in the truck at the time of the accident. This fact was also mentioned by him in clear terms in the application filed before the Tribunal. It is correct that the consignor-firm is styled as Messrs. Roshan Lal Kasturi Lal and not after the name of the deceased. Roshan Lal is the brother of Kasturi Lal and the deceased was the son of Kasturi Lal. The firm appears to be a joint Hindu family concern and so the deceased worked in the firm as one of the proprietors and not as an employee. The Tribunal's finding that the deceased was the proprietor of the consignor-firm is based on evidence and so cannot be interfered with. The Tribunal, in view of the above Full Bench decision of this court, was not justified in making the insurers liable for payment of compensation to the heirs of the deceased and as such the appeal preferred by them succeeds.

7. The learned counsel for Des Raj, appellant, urged that the accident was not caused due to any negligence on the part of the driver of the truck and that the amount of compensation had been assessed on the high side. The applicant examined Tej Chand, A.W. 4, and Abhe Ram, A.W 5, as eye-witnesses of the accident. The first of them deposed that a little before sunrise when he was going on foot along with Abhe Ram, he saw a car coming from Delhi side passing a truck and soon after the truck which was coming from Panipat side struck against the bridge after dismantling a portion thereof collided against a neem tree and got tilted. The wheat bags got scattered and one of the occupants of the truck died who was taken in another truck to Panipat. He said that the truck was going slightly fast but hastened to add that it was going on normal speed. He admitted in cross-examination that it was on hearing the noise he looked behind and saw the effects of the accident arid did not see the truck actually striking the culvert and the neem tree, Abhe Ram whose fields are close to the spot corroborated the statement of the above witness. He explained that the man who was sitting on the top of the truck struck against the neem tree and his head was chopped off and thrown in a nearby ditch. The description of the accident as given by them left no doubt in my mind that the driver of the truck was negligent in the performance of his duties. The truck was going on the G.T. Road and as such there was enough room forthe driver to get out of the range of the car's dazzling light and to save the truck from running into the culvert and then into the neem tree. The fact that he was not able to control the truck within a reasonable distance shows that he was going fast. The Tribunal was thus right in observing as it did that the accident was caused due to the negligence of the driver of the truck.

8. The manner in which the accident occurred speaks for itself and goes a long way in supporting the Tribunal's finding. The amount of compensation awarded to the applicant, in my opinion, is just adequate and cannot be reduced on any account. The deceased was a matriculate and a young man of 18 years of age. His earning capacity at the rate of Rs. 100 per mensem cannot be termed as unreasonable. The Tribunal from the account books of the consignor-firm found that its income was Rs. 2,400 per annum and so the share of the deceased came to about Rs. 100 per mensem.


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