SULABHA Vs. VANDANA

JUDGEMENT

(1.) THE appellants before us are the widow and daughters of one s. Bidakar, hereinafter referred to as the deceased. On 6. 11. 1980 he was driving motor car bearing No. MEL 3888 on the national Highway heading for Belgaum on his return from Kolhapur. At about 2. 30 a. m. while he was approaching the Nippani check-Post the car hit the rear of truck bearing No. MEI 4412. This truck was carrying iron rods and as a result of the collision Bidakar sustained serious injuries. He was taken to the hospital but he died soon thereafter. It is also alleged that the cleaner of the truck was in the process of tying the iron rods and that in the course of the same incident the car caused injuries of some seriousness to him. In respect of that incident he has lodged a claim which was adjudicated by the M. A. C. T. and was ultimately settled by the insurer of the car. We are here concerned with the claim for compensation that was preferred by the wife and minor daughters of Bidakar who claim an aggregate sum of Rs. 6,00,000. The M. A. C. T. , Belgaum by judgment and order dated 19. 6. 1995 dismissed the claim in its entirety the reason being that the evidence indicated that the insurance policies which cover the truck had expired 4 days prior to the date of the accident and that consequently, no liability could be fastened on the insurance company. The policy in question had expired on 1. 11. 1980 whereas the incident in question had taken place on 6. 11. 1980 and there is no evidence before the court to indicate that this policy had either been renewed or that any other policy was in force as on the date of the accident. It is against the order of rejection of the claim that the present appeal has been preferred.

(2.) AS far as the aspect of quantification of the compensation is concerned the appellants learned advocate submitted that the Tribunal was in error in having refused to quantify the same because even if the policy had expired it was open to claimants to recover the whole of the amount from the owner of the truck. The learned advocate submitted that the Tribunal had disqualified the claimant from compensation on one additional ground, viz. , that the negligence had been attributed to the deceased, secondly, there is a finding that he was driving under the influence of alcohol and the Tribunal has held that having regard to this position in law, that there could be no question of any liability arising vis-a-vis any third party for the simple reason that the death of Bidakar has been attributed to his own negligence and the condition in which he was driving the car. It is this finding that has been assailed before us and we have heard the learned advocates with regard to this aspect of the case.

(3.) RESPONDENTS learned advocate did raise one contention which we need to deal with wherein he pointed out that two separate claims were preferred before Claims tribunal, one on behalf of the heirs of the deceased Bidakar and second one by the injured cleaner of the truck and the Tribunal has disposed of both the claims through a common judgment though, it is really two judgments that have been linked up. Respondents learned advocate submitted that in these circumstances where a clear finding has been recorded, that the negligence is attributable to the deceased, that it was incumbent upon the present claimants to have challenged that finding through a separate appeal and if they have not done so that they would be estopped in law from agitating that issue in the present appeal. This submission is extremely involved and highly technical and we are not inclined to uphold it for the simple reason that both claims were disposed of through a common judgment though the respondents learned advocate may be right when he points out that the two judgments run one after the other. The appeal that has been preferred against that judgment can certainly call into question any of the findings contained therein and it would be too harsh and too technical to pin down the present appellant to the position that they were legally obliged to separately challenge the findings in the companion claim petitions. In our considered view, the claimants are within their rights to re-agitate the question of negligence dehors whatever may be the findings in the companion petition because after going through the record and having heard the learned advocates we do find that the circumstances under which the deceased sustained injuries and the circumstances under which the injured cleaner of the truck sustained injuries are not necessarily identical. The finding in one of the claim petitions does not necessarily bind the other one.