INDIAN MERCANTILE INSURANCE CO LTD Vs. CHAMLA DEVI

JUDGEMENT

(1.) THIS is an appeal by the insurance company against the award of the Motor Accident Claims Tribunal, Gurgaon, dated 22nd of April, 1971, whereby a sum of Rs. 8,000 has been awarded to each of the three claimants against Ishwar Singh, driver, Randhir Singh, owner of the truck and the appellant-insurance company. Out of the amount awarded Rs. 20,000 was to be paid to the claimants by the insurance company and the remaining by the owner and the driver of the truck jointly and severally.

(2.) RAM Karan was conductor on truck No. HRG-1170, which belonged to Randhir Singh, respondent, and used to be driven by Ishwar Singh, respondent. The truck was insured with M/s. Indian Mercantile Insurance Co. Ltd. , New Delhi, and under the policy there was a special clause that the insurance company would be liable to compensate not only under the Workmen's Compensation Act, 1923, but also under the Fatal Accidents Act or at common law in respect of any personal injury to any paid driver (or cleaner or conductor or a person employed in loading and/or unloading ). On 12th of March, 1969, while Ram Karan, conductor, was checking the wheels of the truck, the driver started it with the result that Ram Karan was crushed under the wheel of the truck as a result of which he died at the spot. The widow, a minor son and a minor daughter of the deceased-conductor filed a claim petition before the Motor Accident Claims Tribunal, Gurgaon, for awarding Rs. 50,000 as compensation.

(3.) THE application was contested by all the respondents except Ishwar Singh, driver, who did not appear and was proceeded ex parte. The insurance company took the plea that by virtue of Section 95 of the Motor Vehicles Act, 1939, the Motor Accident Claims Tribunal has no jurisdiction and it was further pleaded that the liability, if any, with regard to a conductor, which was required to be covered under the provisions of the Motor Vehicles Act, was limited up to the liability as fixed under the Workmen's Compensation Act. It was also stated that the maximum liability of the insurance company was limited to Rs. 20,000 only, besides taking other pleas that there was no rash and negligent driving by the driver of the truck and for that reason no compensation was liable to be paid. On the contest of the parties, the following issues were framed :