ORIENTAL INSURANCE CO LTD Vs. ABDUL SAHID KHAN

JUDGEMENT

(1.) THE insurer -appellant challenges the award of the Second Motor Accident Claims Tribunal by which it has directed it (appellant) to pay compensation of Rs. 75,000/ - to the respondents 1, 2 and 5.

(2.) THE deceased was Attaullah Khan. At the relevant time he was working as a watch repairer under M/s. Utkal Watch Company, Dolamuhdai, Cuttack. On 13 -1 -1986 at about 6 a. m. while he was returning from milk centre with a Cane of milk in his hand on the left side of the road, the truck bearing registration number ORU 3289 belonging to respondent No. 6 came in high speed and knocked him down near the mosque at Jobra as 3 result of which he sustained severe injuries. Ha was removed to the S C B, Medical College and Hospital, Cuttack where he succumbed to the injuries. Respondent No. 2 is the widow of the deceased Attaullah Khan. Respondent No 1 is his son and respondent Nos. 3 to 5 are his daughters. Alleging that the accident took place due to the rash and negligent driving of the driver of the truck, they filed an application claiming compensation Rs. 98,735/ - from the appellant and respondent No. 6. The owner of the truck i.e. respondent No. 6 did not contest the case and was set exparte. The appellant contested the matter In its written statement, it inter alia, insisted calling upon the owner of the truck to produce the driving licence of the driver who was driving the vehicle at the time of accident. It was stated in the written statement that on the failure of the owner to do so, it should be presumed that there was statutory violation of the condition as contemplated under Section 96(2) of the Motor Vehicles Act, 1939 hereinafter referred to as 'the Act').

(3.) SHRI A. K. Mohanty learned counsel for the appellant contended that as the offending vehicle was driven by a person who had no driving licence at the time of accident, no liability can be fastened on the appellant in view of Section 96(2)(b)(ii) of the Act. In this connection, he has placed reliance on the judgment of the Supreme Court in Kashiram Yadav v. Oriental Fira and General Insurance Company. 1990(1) ACC -1. Shri R. N. Mohanty, learned counsel for the respondent No. 2 relying on another judgment of the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadari. AIR 1987 SC 1184 submitted that the insurer atone would bo liable to pay the awarded amount even though the offending vehicle was not driven by a licensed driver. Shri B. N. Mohanty appearing for the owner respondent No. 6 reiterated the submission made by Shri R. N. Mohaniy,