The insurer is entitled to raise all contentions which the insured could do, if the insurer has been impleaded as a party to the proceedings and has been allowed to cross-examine the witnesses on all aspects of the matter, including the quantum of compensation.

S.B.Sinha, J.

1. This appeal is directed against a judgment dated 16.4.1990 passed by Mr. Uma Shanker, Additional Claims Tribunal, Hazaribagh in Claim Case No. 52 of 1985, filed on behalf of the respondent Nos. 1 to 10 purported to be in terms of Sec. 110-A of the Motor Vehicles Act, 1939 .

2. The fact of the matter lies in a very narrow compass.

3. The deceased Sheo Shanker Prasad had been travelling in a Government jeep belonging to the Posts and Telegraphs Department of the Union of India bearing registration No. BHV 3458 along with his wife, a daughter, Minni Sinha and granddaughter, Ansu Kumari. The said jeep met with an accident near Padma Gate on Patna-Ranchi Road having collided with a tanker truck bearing registration No. HYE 2349 belonging to the respondent No. 11.

4. According to the applicant-respondents, the accident occurred owing to rash and negligent driving on the part of the driver of the said tanker. The criminal case was also lodged on the basis of a frad beyan of Minni Sinha as against the driver of the tanker, namely, Ram Sanjivan, which was registered as Barhi P.S. Case No. 78 of 1985 (G.R. No. 830 of 1985) purported to be under Secs. 279, 337 and 304 of the Indian Penal Code,

5. It is admitted that as on the relevant date the petitioner had been getting a salary of Rs. 2,085.00 which was evidenced by the last pay certificate as contained in Exh. 5. The deceased, had he been alive, would have superannuated on the expiry of 31.3.1989. It is also admitted that the deceased at the time of his death was Superintendent of Post Office and was posted at Aurangabad.

6. Before the learned Claims Tribunal an application was filed under Section 110-A of the Motor Vehicles Act, 1939 , claiming compensation to the extent of Rs. 3,31,043.00 .

7. Before the court below the owner of the truck, namely, the respondent No. 5 did not appear, nor did the driver contest the case. The appellant, however, appeared before the court below and inter alia contended that it was not liable to pay any amount of compensation as claimed for by the applicant-respondent Nos. 1 to 10. It was further submitted that in any event, the claim put forth by the said respondent Nos. 1 to 10 was excessive.

8. The learned court below on the basis of the pleadings of the parties framed the following issues for its consideration:

(i) Is the claim maintainable?

(ii) Whether the accident was due to rash and negligent driving of the tanker truck No. HYE 2349?

(iii) Are the claimants entitled to claim compensation and if so to what extent and against whom?

(iv) To what relief or reliefs the claimants are entitled?

9. The learned court below upon consideration of the entire case granted an award for a sum of Rs. 3,25,765.00 . Prior to that, however, an interim award of Rs. 15,000.00 was directed to be paid in favour of the applicants purported to be in terms of Sec. 92-A of the Motor Vehicles Act, 1939 .

10. The learned trial court held that the deceased would have received a salary of Rs. 1,24,437.00 on the basis of revised pay scale for the period from 1.5.1985 to 31.3.1989 and have also received pension for a sum of Rs. 2,88,048.00 for the period from 1.4.1989 to 31.3.2006. The learned court below has also granted compensation to the extent of Rs. 15,000.00 on the ground of mental shock and agony suffered by the applicants.

11. Mr. M.Y. Eqbal, learned counsel appearing on behalf of the appellant, had raised three contentions in support of his appeal: Firstly, the learned counsel submitted that in view of the fact that the owner of the truck, respondent No. 11, did not appear, the appellant is entitled to take all points which the owner of the truck was entitled to, in view of the provisions contained in Section 110-C (2-A) of the Motor Vehicles Act.

12. The learned counsel in this connection has placed strong reliance on New India Assurance Co. Ltd. V/s. Mariappan 1984 ACJ 222 (Madras), Vanguard Insurance Co. Ltd. V/s. Raghunath Patra 1976 ACJ 1