Judgment

P. S. KAILASAM J.:- This appeal is by special leave granted by this Court to Bishan Devi widow of late Bhagwan Das and her four children against the judgment and order dated 7th Dec. 1967 of the High Court of Punjab & Haryana dismissing the Claimants F. A. O. No. 10 of 1962 against the award of Punjab Motor Accidents Claims Tribunal, Chandigarh, dismissing their claim.

2. The appellants filed a petition on 4th September, 1961 before the Chairman, Motor Accidents Claims Tribunal Punjab, Chandigarh, alleging that the husband of the first appellant died by having been run over by a lorry at mid-night between the 8th and 9th July, 1961, at about a distance of 60 feet from the road. It was alleged that the truck was coming from Jullundur and it took a sudden turn and ran over the first appellants husband, Shri Bhagwan Das, and that it was being driven in a rash and negligent manner. The appellants 2 to 5 were the minor children of the first appellant, all of them being below 11 years of age on the date of the filling of the petition. It was alleged that the monthly income of the deceased was Rs. 109/- per month and a claim was made for Rs. 50,000 as compensation.

3. The respondents to the petition were (1) Sirbaksh Singh and (2) The Motor Owners Mutual Insurance Co. Ltd., Belgaum the insurer. The written plea was filed by the second respondent, the insurer, on 10th Oct. 1961. Some of the pleas are noteworthy and it is necessary to set them out in some detail. In para 4 the insurer pleaded that the "truck was stolen by somebody while it was standing. A report to the police was made to this effect. Whoever made this accident, if any, drove the truck without the consent of the owner, and, therefore, the respondents are not liable."

In its reply parawise in paragraph 1 it reiterated "This truck did not meet with any accident nor was any intimation sent to the replying respondent." In paragraph 2 it was again reiterated "No accident took place as alleged. Somebody stole away the truck without the knowledge of the owner or driver. The respondents are not liable to pay any compensation. The person liable is the person who was driving the truck at the relevant time and not the owner." In paragraph 11 it was pleaded "that the replying respondent is, in any case, absolved from any possible liability in connection with the alleged accident under the provisions of Ss. 95 and 96 (2) of the Motor Vehicles Act. 1939." In paragraph 12 it was stated that the "offending vehicle was being driven at the relevant time by a driver who had no driving licence and was not even an authorised driver of respondent No. 1, as he had stolen the truck and the owner is therefore not liable." Again in paragraph 13 the insurer pleaded that the "truck at the time of the accident was being unauthorisedly used and driven without the permission or authority of the owner. As the truck was being used without the authority of the owner therefore, the owner is not vicariously liable for the tort. The replying respondent is, therefore, also not liable."

4. The first respondent, the owner of the vehicle filed his written statement on 16th Nov. 1961. In his statement he stated while dealing with the merits in paragraph 1 that "this truck did not meet with any accident nor was any intimation sent to the replying respondent." In paragraph 2 he stated that "No such accident occurred as alleged in which the husband of the applicant may have been killed due to the negligence of the driver of respondent No. 1. Allegation of negligence on the part of the driver is denied as incorrect."

5. On these pleadings parties went to trial. The claimants examined 5 witnesses AWs 1 to AWs 5. AW. 1 is Bachan Singh. He was sleeping on the night of occurrence on the roof of the Trade Union Office. The witness and others heard hue and cry at night when the offending truck ran over the deceased. Bachan Singh and others came down and extracted the deceased and two other persons from underneath the