SHANKER PRASAD Vs. MALTIDEVI

JUDGEMENT

(1.) This is owner's appeal u/S. 173 of the Motor Vehicles Act, 1988 against the award dt. 10-7-1996 in Motor Accident Claim Case No. 10/90 passed by the Vth Addl. Motor Accident Claims Tribunal, Bilaspur.

(2.) Facts giving rise to this appeal are thus : The respondents Nos. 1 to 3 filed an application under Section 110-A of the Motor Vehicles Act, 1939 (the 'Act of 1939') on 9-3-1988 before the Claims Tribunal, Bilaspur to claim compensation of Rs. 1,82,000/- for death of Shivprasad aged about 37 years, the husband of respondent No. 1 and father of respondents 2 and 3 who died in motor accident on 1-1-1988 by the use of Truck No. MPL 7112 owned by the appellant, insured by the respondent No. 8 and driven by respondent No. 9 at the relevant time. The deceased hired the Truck on payment of Rs. 300/- for carrying his goods/bundles of cloth to the weekly market in Khodri Bazar. As the driver of the appellant was not available the appellant engaged the respondent No. 9 a duly licensed driver arranged by the deceased to drive the truck. For the safety and security of loaded goods the deceased also travelled in the truck. On the way the truck turned turtle as a result of which Shivprasad died. The appellant and the insurer contested the claim while the respondent No. 9 remained ex parte. The insurer disowned its liability as the risk was not covered under Proviso (ii) of clause (b) of sub-section (1) of Section 95 of the Act of 1939 and also in the terms of the policy as the deceased was not carried in the truck as a result of contract of employment with the owner of the truck.

(3.) The Tribunal after appreciating the evidence on record adduced by the parties held that the accident occurred due to breakage of band-arm, U bolt of front spring and of central bolt. But it was due to negligence of the appellant as the appellant has failed to establish that the mechanical failure had resulted despite all cares and caution on his part and he failed to keep the truck in road-worthy condition. After holding so the Tribunal worked out the compensation in all Rs. 1,37,000/- with interrest thereon at the rate of 12% per annum from the date of application till payment, which was ordered to be paid by the owner and driver jointly and severally. The insurer was absolved from the liability to indemnify the owner and to pay compensation holding that the deceased was travelling in the truck as a passenger with his bundles of cloth. He was not carried in the vehicle for hire or reward in pursuance of contract of employment. Not only this, the driver permitted 10-15 persons to travel with their goods for sale in the market, on payment of fare, which was a breach of contract of insurance Ex.D/1.