GYARSI DEVI Vs. SAIN DAS

JUDGEMENT

(1.) This appeal has been filed under Section 110-B of the Motor Vehicles Act. 1939 (hereinafter referred to as 'the Act'), by Smt. Gyarsi Devi (hereinafter referred to as 'the Claimant' against the award, dated 18th December, 1975, made by the Motor Accidents Claims Tribunal (hereinafter referred to as the 'Claims Tribunal') in Civil Miscellaneous (M. A. C.) Case No. 2 of 1971. In the case aforesaid, the claimant had claimed a sum of Rs. 50,000/-as compensation on account of death of her son. Om. The Claims Tribunal has awarded an amount of Rs. 30,600 as compensation to the claimant against Bashir Ahmed, respondent No. 2, but has dismissed the said claim as against Sain Das, respondent No. 1, and the New India Assurance Company Limited, respondent No. 3.

(2.) The aforesaid claim relates to an accident which took place on 16th Aug. 1970 at about 5.15 p. m. at Ramganj Chopar in Jaipur City. The case of the claimant is that at the time of the accident, the deceaced Om and Om Kishan were sitting at Ramgani Chopar on the footpath and were selling 'Rakhees'. A truck bearing No. RSL 2367, driven by respondent No. 2, came from the side of Char Darwaia. The said truck was being driven at a high speed and it first collided with a city-bus and thereafter hit a cyclist and ultimately it went on the footpath, where the two boys. Om and Kishan, were selling 'Rakhees', and crushed them. Om, the son of Smt. Gyarsi Devi. died on the spot as a result of the injuries sustained by him, whereas the other boy. Kishan died in the Hospital. On 7th July, 1971. the claimant filed the claim petition, wherein, she claimed Rs. 50,000/- Rs. 25,000/-as compensation for the loss of benefit of the support of her only son, and Rs. 25,000/-as compensation for nervous shock pain, mental agony and buffering. In the said claim. Sain Das, respondent No.

(3.) The said claim was contested by respondents Nos. 1 and 3, who filed a joint written statement, wherein, it was stated that respondent No. 2, Bashir Ahmed. who was driving the truck at the time when the accident look place, had not been employed by respondent No. 1 as a driver, and that he was only a cleaner, and that at the time of the accident, respondent No. 2 was not working during the course of business and employment of respondent No. 1. According to the said written statement, on the date of the accident, the truck had brought stones from Kota and the driver of the truck had taken the truck to Jhetwara Road, near T. B. Sanitorium, for the purpose of unloading the stones at the godown of the consignee of the said stones, and as the unloading was likely to take some time, the driver of the truck had gone away to take his meals etc., and respondent No. 2, was left near the truck to keep a watch over the truck and that during the absence of the driver of the truck, respondent No. 2 took away the truck without the permission of the driver and went to Amer, and that on the way, he consumed alcohol and while returning, he caused the accident at Ramganj Chopar. According to the aforesaid written statement, the said act of respondent No. 2 was wholly unauthorised and unwarranted and was not connected with his employment and job, and that neither respondent No. 1. nor respondent No. ?, were liable for the wrongful action of respondent No. 2. In the said written statement, respondents Nos. 1 and 3 have also submitted that the amount for compensation, claimed by the claimant was highly excessive.