USHA RANI BANERJEE Vs. PREMIER INSURANCE COMPANY LTD

JUDGEMENT

(1.) K. N. Singh, J. This appeal under Sec. 96 of the Civil P. C. is directed against the judgment and decree dated 21-7-1969, passed by the Additional Civil Judge, Gorakhpur, dismissing the plaintiffs-appellants' suit.

(2.) SMT. Usha Rani Banerjee and her two children Tanaji Banerji, son and Kum. Jaisri Banerjee, daughter, filed a suit for recovery of Rs. 30,000/- as compensation from the defendant-respondents with the allegation that Madhusudan Banerji, husband of SMT. Usha Rani Banerjee, was run over and killed by Public Carrier bearing No. US0 9787, of which Biwant Singh Koheli, defendant No. 2 was the owner and which was being driven by Jiwan Singh, defendant No. 3. The vehicle was insured with the Premier Insurance Co. , defendant No. 1. The accident occurred on account of rash and negligent driving of the vehicle causing serious injuries to Madhusudan Banerji which resulted into his death. The plaintiffs claimed a decree for damages and compensation for the amount of Rs. 30,000/- against the defendant- respondents for the death of Madhusudan Banerji who was the sole bread earner of the family. Initially the appellants had filed the suit only against the Premier Insurance Company, but later by an amendment application dated 21-4-1966, they impleaded the owner and driver of the vehicle also as defendants to the suit.

(3.) WHETHER death was caused by defendant No. 3 during the course of his employment with defendant No. 2? If not, its effect? 5. On appraisal of evidence, the Trial Court answered issue No. 1 against the plaintiffs on the finding that the owner had not permitted the driver to drive the truck without caring for the safety of the public on the road. Issue No. 5 was answered in plaintiff's favour on the finding that Madhusudan Banerji died in the accident on account of rash and negligent driving of the vehicle by the driver who was driving the vehicle in the course of his employment with defendant No. 2, as such the owner and the driver both were liable to pay damages to the plaintiffs. While discussing issue No. 3, the Trial Court held that Madhusudan Banerji was employed in the office of the Chief Commercial Superintendent, N. E. Railway, Gorakhpur as Head Clerk, he was drawing salary at the rate of Rs. 350/- per month. He was aged about 36 years on the date of the accident, and on account of the death of Madhusudan Banerji the plaintiffs were put to a pecuniary loss of Rs. 30,000/- which was payable by the defendants. In spite of these findings the Trial Court dismissed the suit as barred by time. Aggrieved the Plaintiffs have preferred this appeal.