NATIONAL INSURANCE COMP LTD Vs. RAM PRASSAD KUSHWAHA

JUDGEMENT

(1.) THE insurer has preferred this appeal in terms of Cl. 10 of the Letters patent of the High Court of Judicature at patna, and is aggrieved by the order dated 10-9-1999, passed in Misc. Appeal No. 517 of 1998 (Ram Prasad Kushwaha v. Manoj mandal and others), whereby the appeal at the instance of the owner of the vehicle (respondent Nos. 1 and 3 herein) has been allowed, and the insurer has been directed to pay the amount of compensation to the claimants (respondent Nos. 5 and 6 herein)as per the direction in the judgment of the learned trial Court.

(2.) RESPONDENT No. 2 herein (Manoj mandal) was driving tractor No. BHJ 5889 (owned by respondent Nos. 1 and 3), and, on account of his rash and negligent driving dashed against tractor No. BHJ 6036 driven by Nakul Yadav, aged about 21 years, who fell down in the adjoining ditch covered with water and died on the spot. Respondent No. 5 (Anil Kumar Yadav), and respondent No. 6 (Mosmat Sanju Devi), filed the application under S. 110 of the Motor Vehicles act, 1939 (hereinafter referred to as 'the 1939 Act') which was allowed, the amount of compensation was determined, and directed to be paid to respondent Nos. 5 and 6 (the claimants ). It was further held therein that respondent No. 1, in the capacity of the owner of the vehicle, was liable to pay the compensation. Aggrieved by the same, respondent Nos. 1 and 3 preferred the present Misc. Appeal No. 517/98, which was allowed by the impugned order, and it has been held that the insurer is liable to pay the amount of compensation, and respondent Nos. 1 and 3 have been absolved of the liability to pay.

(3.) LEARNED counsel for the appellant submits that respondent Nos. 1 and 3 are liable for compensation. He relies on the provision of Ss. 3 and 11 of the 1939 Act. He also relies on the judgment reported in 2006 (2)PLJR (SC) 306 : (AIR 2006 SC 3440) (National Insurance Co. Ltd. v. Kusum Rai ). He further submits that S. 15 (1) (proviso) of the 1988 Act, which has supplanted the 1939 act is in part materia with S. 11 of the Act, and has been so observed in the following reported judgments :- (i) 2007 (2) PLJR 168 : (AIR 2007 SC 1445) (Ishwar Chand v. Oriental Insurance Company) (ii) 2007 (2) PLJR 173 : (AIR 2007 SC 1563) (National Insurance Co. Ltd. v. Laxmi Narain Dhut ).