The insurer is liable to pay compensation under Section 96(1) of the Motor Vehicles Act, 1939, even if the claim against the insured is dismissed, provided that the vehicle was insured at the time of the accident and was running with a valid road permit.

U.N.Sinha, J.

1. This appeal has been filed by the insurer and it arises out of an application filed before the Claims Tribunal under the Motor Vehicles Act, 1939 (Act 4 of 1939), under Sec.110-A of the said Act. It appears that there was an accident on the 19th July, 1959, in which one Kokai Mandal, son of Ganesh Mandal and grandson of Foolchand Mandal, was run over by a truck numbered BRL 1323 at about 4.30 p. M. in village Dewalban, police station Jamtara, in the district of Santal Parganas. Kokai Mandal was aged 8 or 9 years and he was taken to the Jamtara Charitable Dispensary after the accident and he died there. The owner of the truck was Sri Radha Krishna Agarwal (respondent No. 4) and the vehicle was insured with the Insurance Company, which is the appellant in this court. An application dated the 27th October, 1959, made by Foolchand Mandal, grandfather of the deceased, was sent by post to the Claims Tribunal.

This was, received by the Claims Tribunal on the 29th October. It appears that in due course, another application was filed by Foolchand on the 17th August, 1961, which was a formal one, claiming compensation amounting to Ra. 6,000. Thereafter, another application was filed on the 17th June, 1963, in which it was prayed that Ganesh Mandal father of Kokai Mandal, and Dulari Devi, wife of Ganesh Mandal may be made claimants nos. 2 and 3 in this case, by condoning the delay in filing the application. This matter was considered by the Tribunal on the 10th August, 1903, and it was ordered that the names of Ganesh Mandal and Dulari Devi would be as added as applicants nos. 2 and 3, subject to question of limitation, if any to be heard during argument. This matter was considered by the judgment under appeal, in which an issue as to limitation was framed. The delay was condoned by the Tribunal. The substantial point argued under that issue was with respect to the petition which was sent on the 27th October, 1959. Apparently, the question which was left open in the order dated the 10th August, 1963 was not re-argued during the hearing of the case itself, although a reference was made under issue Nos. 1 and 3 to the addition of Ganesh Mandal and Dulari Devi to the category of claimants.

It was held that Foolchand Mandal along with his son and the sons wife were legal representatives of the deceased. The substantial point dealt with under issue Nos. 1, 4 and 5 was the liability of the appellant as the insurer. It was held that a compensation of Rs. 2,000 should be paid and each of the applicants will be entitled to get one-third of that amount. The liability to pay was put on the Insurance Company.

2. The main contention raised on behalf of the appellant is based on the findings under issue Nos. 1, 4 and 5 and the lines in the order of the Claims Tribunal which have been made subject-matter of argument in this court on behalf of the appellant run thus:-

-

"The owner Shri Radha Krishna Agarwal is, therefore, not liable to pay any compensation and the opposite party No. 2 the Vanguard Life Insurance Company Ltd. Madras is liable to pay a sum of Rs. 2,000.00 as compensation to the applicants.

The claim against the owner Radha Krishna Agarwal is disallowed without costs."

Learned counsel for the appellant has also urged that the claim made before the Tribunal was barred by limitation under Sec.110 A(3) of the Motor Vehicles Act. It is argued that the first application sent by the grand-father was dated the 27th October, 1959 and it was made beyond sixty days of the date of occurrence of the accident But, it is difficult to accept this contention as under the proviso to Sec.110A (S), it is open to the Tribunal to entertain an application after the expiry of the period of sixty davs and the Tribunal has considered this matter, as indicated above, and has condoned the delay so far as the first application by the grandfather was concerned. The grandfather was examined on oath and his case of illness has been considered an