Sham Lal vs Shmt. Janak Dulari and others

Harbans Lal, J.—This appeal is directed by Sham Lal, appellant, against the award of the Motor Accidents Claims Tribunal, Ambala, (hereinafter called the Tribunal), dated July 3, 1972, whereby the claim petition u/s 110-A of the Motor Vehicles Act, (hereinafter referred to as the Act), was partly allowed. No appeal has been filed either by the claimants-respondents, the owner of the defaulting vehicle or the insurance company.

Briefly, the facts are that on August 21, 1970, at about I P.M., Manohar Lal, (now deceased) was going on his motor cycle on the G.T Road, from Rajpura side. At the junction of G.T. Road and Balmiki Road, Ambala City, he took turn and was proceeding along Balmiki Road, A Truck No. HRK-1287 (hereinafter to be called the truck) driven by Sham Lal, appellant, came from the side of Ambala Cantt. and struck against the rear side of the motor cycle being driven by Manohar Lal. The truck was being driven at a high speed. Nor the horn was blown by the appellant. As a result of the impact, Manohar Lal, was thrown on the ground and he sustained serious injuries. The accident was witnessed by Kalyan Dass, A.W. 5; Bant Lal, A.W. 6 and Kundan Lal. A.W. 4, Manohar Lal was removed to the Civil Hospital, Ambala, in an unconscious condition in the said truck where he succumbed to his injuries. A report was sent to the S.H.O. Police Station, Ambala City, by the doctor. The claim petition was filed by Shmt. Janak Dulari, widow of the deceased, Shrimati Lajwant, mother of the deceased, on her behalf as well as on behalf of Sanjeev Kumar, aged 7 months, son of the deceased, u/s 110-A of the Act, against the driver of the truck, and the owners of the truck. The General Assurance Society was also impleaded as respondent in the capacity of an insurer for the truck. The claim petition was contested by Sham Lal, appellant, as well as the owner of the truck and the insurer. In view of the pleadings of the parties, the following issues were framed:--

Whether the alleged accident resulting in the death of Manohar Lal happened due to rash and negligent driving of respondent No. 1, Sham Lal, of vehicle No. HRK-1287.

What amount, if any, are the petitioners entitled as compensation and from whom?

Whether respondent No. 1, Sham Lal, was driving the vehicle in question, in course of employment under respondent No. 4? If not, to what effect?

Relief.

After the evidence had been adduced on both sides, the Tribunal came to the conclusion that Sham Lal, appellant, was employed as a Cleaner on the truck by Ajit Singh, Respondent No. 5 and the same was being driven by him at the time of the accident. According to the further findings, one Ashok Kumar was the driver of the truck, and was sitting beside Sham Lal, appellant in the truck at the relevant time. Admittedly, Ajit Singh, respondent, was the owner of the truck. According to the impugned judgment only Sham Lal, appellant, has been held liable for the accident and an amount of Rs. 1,00,000/- has been awarded against him. The owners of the truck and the insurer have been exonerated of the liability. The present appeal is only on behalf of the said Sham Lal, the appellant.

The accident had been witnessed by three witnesses, namely, Kundan Lal, A. W. 4, Kalyan Dass A W. 5 and Bant Lal, A. W. 6. According to their consistent statements, the fatal accident occurred when Manohar Lal who was driving the motor cycle, took a turn from the G.T. Road to the new road of Chuharmajri, Ambala City. At the time of the accident, the motor cycle was going ahead and the same was hit with a strong impact by the truck from behind. It was also unambiguously stated by them that the truck was being driven at that time by Sham Lal, appellant. It was also their version that the truck at that time was being driven at a fast speed. Even after the accident the said Sham Lal, made an attempt to run away, but he was caught hold by Kundan Lal and Kalvan Dass, AWs. It is not disputed that Manohar Lal had sustained serious injuries as a result of the accident by the truck and had succumbed to the same after he had been removed to the hospital According to the postmortem report and the statement of the doctor death could be caused by accident from the vehicle. Though Sham Lal, appellant, in his statement denied that he was driving the truck at the time of the accident yet this part of his statement was rightly disbelieved by the tribunal. According to the statement of Ashok Kumar he had been employed as a driver on this truck by the owner and he had allowed Sham Lal, appellant to drive the truck without authority from the owner. According to Ajit Singh, owner of the truck, the said Sham Lal had been employed as a Cleaner on the truck and Ashok Kumar as a driver. The evidence produced on both sides leaves no manner of doubt that the fatal accident was the result of rash and negligent driving by Sham Lal, appellant. The Learned Counsel for the appellant has not seriously contested this conclusion of the tribunal. His only contention is that the amount of compensation awarded is excessive. Consequently, the finding of the Tribunal on Issue No. 1 is affirmed.

Regarding the amount of compensation, the tribunal concluded that Manohar Lal, deceased, was earning Rs. 900/- per mensem at the time of his death and out of the same, was spending Rs 500/- per month on the maintenance of the claimants. The age of deceased was determined at 25 years at the time of his premature death, as According to the Tribunal, he was likely to live up to the age of 60 years in normal course It was held that the claimants had suffered a total loss for 35 years, amounting to Rs. 2,10,000/-. After giving deduction in lieu of lump sum payment and also excluding the value of two trucks which were found to have been left by the deceased and which were being run by his father, the claimants were awarded compensation of Rs. 1,00,000/- against Sham Lal, appellant, only. These conclusions have been strenuously assailed not only by the Learned Counsel for the appellant, but also on behalf of the owner and the insurer of the truck.

It has been urged that there is no satisfactory evidence to warrant the conclusion that the monthly income of the deceased was Rs. 900/-. This contention is not without merit. In the claim petition, the monthly income of Manohar Lal, deceased, was alleged to be Rs. 1,000/- per month According to the statement of Varinder Mohan, A.W. 1, brother-in-law of the deceased, the latter''s monthly income was Rs 3,000/- whereas his widow, Shrimati Janak Dulari, A.W. 8, in her deposition stated his income to be Rs. 500/- per mensem. Both these witnesses admitted that the deceased used to maintain accounts, but expressed their ignorance if he was assessed to income tax. Neither the accounts nor any assessment order pertaining to the income of the deceased was produced. Though it was stated in their evidence that the deceased, in addition to his profession as a medical practitioner (Vaid) also carried on the business of contractor, yet according to them, he bad not left any property in the form of a house or any immovable property, nor was there any evidence to show if he had got any life insurance policy. In view of this evidence, the conclusion of the Tribunal that the monthly income of the deceased was Rs. 900/- cannot be agreed to. On the other hand it is reasonable to hold that the annual income of Manohar Lal, deceased must not be beyond the exemption limit prescribed for the purpose of income tax. At the time of the accident, yearly income upto Rs. 6,000/- only was exempt from income tax. Thus the annual income of the deceased is fixed at Rs 6,000/-. The deceased had to support his mother, wife and a minor child. He was likely to spend one-third income of himself and the balance on the maintenance of his family Thus, the annual dependency of the claimants was Rs. 4,000/- The conclusion of the tribunal that the age of the deceased was 25 years at the time of his death in view of the date of birth given in this matriculation certificate is not disputed In view of the normal longevity of life in India, he was likely to live upto 70 years if his life had not been abruptly terminated by the accident The deceased was a youngman maintaining good health His widow was also not likely to re marry as she gave birth to a child. Taking all these facts and circumstances into consideration, sixteen will be a suitable multiplier to arrive at the correct amount of compensation to which the claimants can be held to be entitled On this basis, it is held that the claimant are entitled to Rs. 54,000/- as compensation Consequently, the finding on Issue No. 2 is modified to this extent.

At this stage, it has been vehemently argued by Mr. Mani Subrat Jain, the Learned Counsel for the claimants that it is a fit case in which the provisions of order XLI rule 33, Code of Civil Procedure, be invoked and it be held that not only the appellant, but also the owner and the insurer of the truck are also liable to pay compensation. It has been urged that the finding of the tribunal that the owner and the insurer of the truck were rot liable to pay any compensation because truck was being driven at the time of the accident by Sham Lal, appellant, who was employed only as a Cleaner on the truck and had no driving licence, cannot be sustained.

According to the Learned Counsel for the owner-respondent, Sham Lal, appellant, had no authority to drive the truck; rather its driver had been issued specific instructions not to allow the vehicle to be driven by any other person and that the said Sham Lal had no driving licence. It was argued, that under these circumstances, vicarious liability cannot be attributed to the owner-respondent. The Learned Counsel for the insurer respondent, while emphasising this aspect of the matter further urged that according to the reply filed by the insurer respondent, the insurance policy had expired and it was not operative because the vehicle had been already transferred. It was also highlighted that according to the terms and conditions embodied in the insurance policy, the insurer-respondent was not liable to incur any liability in case the vehicle was plied by a person who had no driving licence. Besides, it was also emphasised by both the Learned Counsel, that as the claimants-respondents did not feel aggrieved against the award of the tribunal by which both the owner and the insurer, respondents, had been exonerated, nor were any cross-objections filed in the present appeal, no case was made out to apply the provisions of Order XLI rule 33, Code of Civil Procedure.

Before considering the question regarding the scope and ambit of Order rule 33, Code of Civil Procedure, and whether the facts and circumstances of this case warrant any order by this Court against the owner and the insurer by taking resort to the provisions of Order XLI rule 33 Code of Civil Procedure, it is appropriate to first deternine as to whether the owner can be held to be vicariously liable for the misconduct of Sham Lal, appellant, in driving the vehicle and resulting in the fatal accident. There can be no dispute that the liability of the insurer will arise only if the owner was held to be vicariously liable.

Ajit Singh, R.W. 3, who is admittedly the owner of the truck, deposed in his statement, that Sham Lal, appellant, was employed as a Cleaner on the vehicle and that it was Ashok Kumar, R.W. 2 who was entrusted with the truck as a driver. This fact is also admitted expressly by Ashok Kumar, R.W., in his statement. It is also clearly made out from his statement that the said Ashok Kumar had taken the loaded truck to the destination for the purpose of unloading the goods. After unloading the goods, he was driving the truck on its return journey to Ambala City. It was during the return journey, that Sham Lal, appellant, was allowed to drive the truck by Ashok Kumar, driver, on the request of the former. At the time of the accident, while the truck was being driven by Sham Lal, appellant, Ashok Kumar, driver, was sitting by his side. The owner of the truck further stated that he had issued express instructions to Ashok Kumar, driver, not to allow any other person to drive the truck. This fact was also admitted by Ashok Kumar, R.W., in his statement. Though Sham Lal, appellant, in his statement did not admit that it was he who was driving the truck at the relevant time or that he was employed as a Cleaner on the truck, yet this part of his statement was not given any credence by the Tribunal in view of the categorical statement of Ajit Singh and Ashok Kumar, R.Ws., Sham Lal, appellant, obviously made this statement to exonerate himself of the liability and thus his statement was rightly ignored by the tribunal, From the above evidence, the following conclusions can be held to be fully established:

Ashok Kumar, R.W. 2, was employed as driver and Sham Lal, appellant, as Cleaner on the truck by Ajit Singh, R.W. 3, the owner of the truck:

At the time of the accident, the truck was being driven by Sham Lal, appellant, with the permission of Ashok Kumar, R.W., the driver of truck and the latter was sitting by the side of the former when the accident took place;

That the accident had taken place during the course of performance of business of the truck as the vehicle was being brought back after unloading the goods; and lastly;

That the truck had been allowed by Ashok Kumar, R.W., its driver, to be driven by Sham Lal, appellant, in spite of the instructions of the owner of the truck to the contrary;

It is after keeping in view the above established facts that we are required to determine whether Ajit Singh, owner of the truck, was vicariously liable for the accident for which Sham Lal, appellant, was directly and primarily responsible.

The principles of law, relating to vicarious liability of the owners in cases of accidents by vehicles driven by other persons have been fully brought out by their Lordships of the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 1966 A.C.J. 89. In this case, the owner of the car, entrusted it to another person (to be called the driver) for plying it as a taxi. The driver, in his turn, gave the vehicle to a third person who had been engaged as a Cleaner for the purpose of taking a driving test to obtain a driver''s licence. While taking the test, the Cleaner knocked down and injured a person who claimed damages. The trial Court held that the Cleaner was the servant of the driver and not of the owner and even if he was the owner''s servant, in his capacity as a Cleaner, he did not act within the scope of his authority in driving the car. The owner was thus held not to be liable. This decision was reversed by the High Court in appeal and it was held that by implication, the owner must be regarded as having authorised the act of driving in training the Cleaner as a driver of the car Their Lordships of the Supreme Court did not agree with the High Court and held that the owner of the car was not liable for the tortuous act of the Cleaner. On the evidence, the following conclusion was reached

It is quite clear that this was an act not done on the owner''s business, but either on the business of the third defendant (the Cleaner) or that of the third and the second defendants together. It has been proved to have been even impliedly authorised by the owner or to come within any of the extensions of the doctrine of scope of employment which we have noticed above.

The law in this respect, has been laid down as under:--

The law is settled that a master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment, the servant''s act does not make the employer liable. In other words, for the master''s liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master''s business makes him vicariously liable if he commits an accident. But it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master''s business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie the owner would not be liable in such circumstances.

It is also significant to note the principle of law as laid down in Ricketts v. The Thos, Tilling Ltd ILR (1915) 1 K.B. 644, was approved by the Supreme Court in the above case. In this case, the driver of an omnibus asked the conductor to drive it and turn it round to make it face in the right direction for the next journey. The master was held liable vicariously because the driver was negligent in the performance of the master''s work. The driver, in fact, set by the side of the conductor at the time when the omnibus was turned round. In these circumstances it was held:--

In other words, the turning round of the vehicle was, an act within the employer''s business and not something outside it, when the driver asked the conductor to drive the omnibus for his master''s business, he did the master''s work in a negligent way. The master was, therefore, rightly held responsible.

In Behari Lal hari Chand Khatri Vs. Surinder Singh and Others, , the driver of a lorry handed over the steering wheel to the Cleaner and he himself sat next to him. As a result of rash and negligent driving, damage was caused to the claimant. The plea taken on behalf of the owner was that the vehicle was not being driven in the course of the driver''s employment and hence the owner of the lorry was not liable for damages. It was held by Shamsher Bahadur, J., that when the driver delegated his duty to be performed by a Cleaner, the negligent act of the driver would make the master liable on the principle of delegation.

In somewhat similar circumstances, when another person was allowed to drive the vehicle by the driver when the vehicle met with an accident, the Division Bench of the Madhya Pradesh High Court held in The Indian Insurance Companies Association Pool, Bombay v. Radhabai Babulal 1976 A.C.J. 362, that the owner of the vehicle was vicariously liable for the tort.

Sharma J., in M/s Oriental Fire & General Insurance Company Ltd. v. Surinder Kumar 1977 A.C.J. 501 held the owner of the vehicle liable for damages when the accident had occurred during the course of the Cleaner driving the same. The Cleaner was proved not to be in possession of a valid driving licence at the relevant time.

In Ganga Sugar Corporation Ltd. Deoband and others v. Sukhbir'' Singh 1973 A.C.J. 449, the owner of the Jeep was held vicariously liable where the driver left the ingnition keys of the jeep when he left the same on the road where there was a crowd and someone drove the jeep and caused accident.

In Khidhi v. Dayal Singh 1969 A.C.J. 444, the driver allowed the Cleaner to drive it away for washing even though the latter was not possessed of licence It was held by Deshpande, J., that the act of the driver in permitting the Cleaner to drive the vehicle was only an improper mode of discharging his duties and the act of the Cleaner was really the act of the driver and as such within the course of employment of the driver and the owner was thus vicariously liable.

The Learned Counsel for the owner and the insurer, have also placed reliance on a number of decisions to claim exoneration of the liability for the owner in the present case. A critical analysis of the same, as discussed below, will show that the same are not of any advantage of their case.

In Roshon Lal Bhalla v. Sudesh Kumar 1968 A.C.J. 63, the accident resulting in the damage to two persons going on the scooter had been caused by a truck, driven by driver. The plea taken was that the driver was driving the vehicle without the knowledge of the owner at an untimely hour and, therefore, the latter was not liable. It was contended that the truck was being used for military supplies and was parked for the night in the premises of R.L. Kochar & Company The owner was not aware where from the truck was being driven and ignorance was pleaded as to whether the driver had taken the truck without permission at the relevant time The High Court however negatived all these pleas and held the owner liable. The Learned Counsel wanted to rely on an observation of the Court in paragraph 30 of the judgment in the following terms:

If the driver has acted against the instructions of his owner, the case would be different.

It is quite evident from the facts of the case that there was no such question for determinion involved as to what will be the position if the driver allowed the vehicle to be driven by another person in the course of employment or during the course of business when the vehicle was being driven.

In Padmavati and others v. Dugganaika 1975 A.C.J. 222, two passengers voluntarily got into the jeep. The right front wheel of the jeep flew away from the axel. Consequently, the jeep toppled and as a result, the passengers sustained injuries and one of them died. It was held by the High Court of Karnataka that it was a case of sheer accident and the claimants had failed to establish that the accident had taken place on account of the rash and negligent driving by the driver.

In Machiraju Visal akshi and others v. Treasurer, Council of India, Mission of the Luthern Church in America 1978 A.C.J. 314, the driver of the car picked up passengers while the car was being driven for master''s business. The car went off the road and dashed against the tree resulting in the death of passengers picked up by the driver. It was held that the owner of the car was not liable because the act of the driver in picking up the passengers was not within the scope of his employment.

From an analytical study of the decisions relied upon on both sides, as discussed above, it is clear that a master is vacariously liable for the acts of servant acting in the course of his employment. It has also been held by their Lordships of the Supreme Court in Sitaram Motilal Kalal''s case (supra), that the master''s vicarious liability arises in either of the two situations:

(1) Where the act is a wrongful one authorised by the master; and

(2) Wrongful and unauthorised mode of doing some act authorised by the master.

There is a futher pre-requisite for making the master liable, that the act under question must have been perpetrated in the course of master''s employment

In the present case, it is established beyond dispute that the Cleaner appellant was driving the truck with the permission of the driver when the truck was going in the course of business or employment of the owner. The act of the driver in allowing the Cleaner to drive the truck inspite of the instructions of the owner to the contrary was a wrongful and unauthorised mode of doing the act of taking back the truck on its return journey which was expressly in the course of his employment. Viewed thus, there can be no escape from the conclusion that Ajit Singh, owner respondent, has to be held vicariously liable for the tortuous act of Sham Lal, appellant.

The fact that Sham Lal, appellant, did not have the driving licence at the time of the accident or that the driver Ashok Kumar, had violated the instructions of its owner in allowing the appellant to drive the truck are not relevant factors for the purpose of determining the vicarious liability of the owner The tribunal did not go into this aspect of the question absolutely and without applying its mind, came to the sweeping conclusion that as the Cleaner had no driving licence and had no authority from the owner to drive the truck, the owner could not be fastened with liability. This conclusion is patently wrong and was not warranted by the settled law.

The next important question is whether the award of the tribunal relating to the liability of the owner and consequently the insurer, could be modified or not under Order XLI Rule 33, Code of Civil Procedure, when no appeal was filed by the claimants, nor were any cross-objections filed in the present appeal.

The scope of this provision has been interpreted by their Lordships of the Supreme Court in Pannalal Vs. State Bombay and Others, as follows:--

The wide wording of Order 41 rule 33 was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the appellant and the respondent, but also as between a respondent and a respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as "the case may require." If there was no impediment in law the High Court in appeal could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff''s suits against it, give the plaintiff-respondent a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear, the illustration puts the position beyond argument.

If a party who could have filed a cross-objection under Order 41 rule 22 has not done so, it cannot be said that the Appeal Court can under no circumstances give him relief under the provisions of order 41 rule 33 (Code of Civil Procedure)

This principle of law was reiterated in Giasi Ram and Others Vs. Ramjilal and Others, and Koksingh Vs. Smt. Deokabai, Reliance has been placed on behalf of the owner respondent on the observations of their Lordships of the Supreme Court in Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, to the effect that Order XLI rule 3 of the Code of Civil Procedure, does not confer unrestricted right on the Court to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. However, its perusal makes it evident that the decision in Panna Lal''s case (supra) was not brought to the notice of their Lordships of the Supreme Court in this case The Learned Counsel for the owner and the insurer, have relied upon a number of judgments of some High Courts, but it is not necessary to make a reference to the same in view of the law laid down by their Lordships of the Supreme Court in the various decisions, referred to above The law can be held to be well established by now in view of this discussion, that in order to do justice between the parties and in order to prevent injustice, it is open to the Court to act under Order XLI rule 33, Code of Civil Procedure, and in the exercise of its discretion, relief can be granted in favour of the respondent who may not have filed the appeal.

In the present case, it has been vehemently urged by the Learned Counsel for the claimants that the award against the Cleaner, appellant, has remained only on paper as neither his whereabouts are known, nor he has any property against which the award may be executed. The consequence is, it is argued, that though the claimants have been held to be entitled to compensation on account of the tragic death of their only bread-earner, they cannot get any relief. It was also urged that the appeal was not filed on behalf of the claimants surely out of ignorance of their rights under the law In view of all the facts and circumstances of the case, I am quite clear in my mind that it is a fit case in which the salutary power as embodied under Order XLI rule 33, Code of Civil Procedure, should be exercised. Thus, I hold that Ajit Singh, respondent No 5, the owner of the truck, vicariously liable for the fatal accident and the claimants-respondents are entitled to recover the amount of compensation as awarded in this appeal from him also.

It has been contended by Mr. Suri, the Learned Counsel for the insurer, that respondent No. 4, the General Assurance Society Ltd., who is alleged to be the Insurer of the truck, cannot be fastened with any liability in the circumstances of this case. It was contended that the insurer had expressly taken objection in its reply to the claim petition that the truck had been sold by its owner and that the insurance policy had lapsed before the accident took place. According to the Learned Counsel, u/s 95(4) of the Act, no liability can be fastened on the insurer unless it is proved and established that a valid certificate of insurance had been issued and the same was valid and operative at the time of the accident, but in the present case, no such evidence was produced on the record It was also urged that no specific issue on the contentions raised by the insurer in the written statement was framed and as such, the insurer was debarred from adducing any evidence to establish the contentions raised in the written statement. This contention has no force. In the claim petition, the truck was stated to be insured with the General Assurance Society Ltd., respondent No. 4 This was admitted by Ajit Singh, owner-respondent, in his written statement. In paragraph 4 of the preliminary objections, even the number of insurance policy was specifically mentioned. It was also averred that in case he was held liable for the accident vicariously, the award will be executable against the insurance policy in accordance with the terms and conditions of the insurance policy. The insurer in its reply did not deny that the truck was insured with it, but the only objection raised was that the truck having been sold before the accident, the policy had lapsed and the insurer was in no case liable for compensation in respect of the accident. When Ajit Singh, respondent, owner of the truck, appeared in the witness-box, no question was put to him by the counsel for the insurer regarding the alleged sale of the truck or that the insurance policy had lapsed or expired in any manner, nor was any evidence whatsoever produced on behalf of the insurer to prove the contentions raised in the written statement to claim exemption from liability on any account. It cannot be denied that the insurer, as a respondent, had the right and opportunity to produce the evidence to prove its case in rebuttal but the same was not avalied of by adducing any evidence whatsoever. Even the insurance policy or its duplicate was not produced, nor was any attempt made to get the original insurance policy issued to the owner of the truck, produced in evidence. In these circumstances, the insurer has no case to claim exemption from liability.

It was lastly contended by the Learned Counsel for the insurer, that u/s 96(2)(b) of the Act, it was open to the insurer to show that there was breach of a particular condition of the insurance policy and as such no liability was incurred by the insurer. It was urged that one of the essential conditions of the insurance policy was that no compensation could be claimed for any accident if the vehicle was driven by a person not in possession of a valid driving licence. As the appellant indisputably did not have a driving licence, the insurer could not be burdened with any liability. This contention is also bereft of any merit as the requisite evidence relating to the conditions of the insurance policy has not been produced. Even no effort was made to bring to light the relevant conditions of insurance policy in the statement of the owner of the truck in cross-examination. Being fully aware of the inherent weakness of its case in this regard, an application vide Civil Miscellaneous No. 4316-CII of 1979, under Order XLI rule 27, Code of Civil Procedure, was filed on December 10, 1979, when the arguments in the case had been heard already on a number of hearings By this application, it was intended to produce a printed form of the insurance policy which was intended to show that a similar insurance policy had been issued to the owner of the truck in the present case and that one of the essential conditions for the insurance company to incur liability in case of accident was that the vehicle must have been driven at the time of the accident by a person having a valid driving licence. At this later stage, such an application does not deserve any serious consideration; nor do I think it necessary to allow such additional evidence to pronounce the correct judgment. Even if this additional evidence is allowed to be produced, the same will not be sufficient to establish satisfactorily that the conditions of the insurance policy as issued to the owner of the truck were in the same terms as in the printed form of the insurance policy annexed to this application. Consequently, in view of the finding that the owner of the truck has been held liable for the accident, the insurer, respondent No. 4, is also held liable to pay compensation for the accident.

As regards the extent of the liability of the insurer, according to the Learned Counsel for the owner, in the absence of the insurance policy, the insurer must bear the entire responsibility for the amount awarded This cannot be agreed to. In view of section 96 of the Act, the liability of the insurer cannot be held to exceed Rs. 50,000/- as there is no evidence to the contrary.

In view of the above discussion, the appeal is partly allowed and the award of the tribunal is modified as under:--

(1) All the three claimants, respondents Nos. 1 to 3, will be equally entitled to the amount of compensation which is assessed at Rs. 64, 000/, and

(2) Sham Lal, appellant, who was driving the truck, and Ajit Singh owner of the truck, respondent No. 5, will be jointly and severally liable to pay this amount. Out of the same, an amount to the extent of Rs. 50,000/- will be recoverable from the insurer, respondent No.4.

These respondents will also be liable to pay interest at the rate of six per cent, per annum from the date of the claim petition till the date of payment There will be no order as to costs.