NEW INDIA ASSURANCE COMPANY Vs. SARASWATI SAMANTA SINGHAR

JUDGEMENT

(1.) In this appeal Under Section 110 -D of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Old Act') corresponding to Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act') the New India Assurance Company Limited (hereinafter referred to as the 'insurer') and Shri Bijayananda Mohanty, the owner of a bus bearing registration No. OSP 2259 (hereinafter referred to as 'insured') call in question legality of the judgment of Third Motor Accidents Claims Tribunal, Puri (in short, the 'Tribunal).

(2.) THE background facts giving rise to this appeal are as follows : On 9 -7 -1983 Govind Chandra Samanta Singhar(hereinafter referred to as the 'deceased') lost his life in an accident wherein the bus of the insured was involved. The deceased was going towards Pipili from Bhubaneswar, along with one Kailash Chandra Badajena in a scooter bearing registration No. ORX 5444. The scooter was being driven by Kailash, There was collision between the scooter and the bus and deceased lost his life. The legal representatives of the deceased, i. e, respondents 1 to 4 in this appeal, lodged a claim Under Section 110 -A of the old Act claiming a compensation of 4,75,000/ . According to them, the deceased was a contractor aged about 38 years, getting about Rs. 1.800/ per month from such business, in addition to Rs. 700/ -per month earned from agricultural lands measuring 7 acres. On account of rash and negligent driving of the offending bus, the deceased who was a pillion rider lost his life. The monthly contribution of the deceased to the family was around Rs. 1,800/ - per month. The owner contested the claim. According to him, the amount claimed was absolutely out of proportion. Similar plea was taken by insurer. The Tribunal framed seven issues. It is to be noticed here that no specific issue was framed relating to the income aspect. Issue Nos. 4, 5 and 6 which indirectly related to the income aspect of the deceased and the quantum of compensation are relevant for our purpose. However, issue No. 6 reads as follows : '6. Are the petitioners entitled to get compensation ? If so, to what extent and from which opposite party ?' This is wide enough to encompass the question of income of the deceased and the quantum of compensation. Referring to various documents filed by the claimants. ' the Tribunal came to hold that the average monthly income of the deceased from contract work was Rs. 1500/ - and Rs. 500/ - from agriculture. Thus, the total income of the deceased was around Rs. 2000/ - per month, out of which he was held to be contributing Rs. 1200/ - for maintenance of the claimants. Accordingly the Tribunal worked out Rs. 3,24,000/ - to be the loss of total income of the deceased. A further compensation of Rs. 16,000/ -was awarded for funeral and post -funeral expenses. In all, a total compensation of Rs, 3,40,000/ - was awarded.

(3.) THE claimants -respondents have filed cross -appeal and prayed for enhancement of the quantum awarded. At the threshold objection has been raised by them to the maintainability of the appeal. According to them, a joint appeal at the behest of both the insurer and the insured is not maintainable. Additionally, the insured cannot be termed to be a person aggrieved and therefore, the appeal at his behest is also not maintainable.