SARMA, J.:-By this judgment we propose to dispose of two appeals under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter called the Act), namely Misc. Appeal (F) 37 and Misc. Appeal (F) 38 of 1968, arising out of Motor Accident Claims Cases Nos. 99 and 100, respectively, of 1966, which were disposed of by a common judgement dated 6-6-1968 by the Member of the Motor Accident Claims Tribunal, Nowgong.

2 The above two claims cases arose out of the same accident in which six persons travelling in a bus bearing No. ASA 3482 belonging to M/s. National Transport (India) Pvt. Ltd. (respondent No. 11 were killed, the bus being knocked off by the engine of a running train while crossing the railway lines at Noonmati Railway level crossing. The bus was engaged at that time by the B. O. C. (Pipe Line) Ltd, for transporting some of its employees residing in Gauhati town to and from their residence during the lunch hour and all the six victims were such employees.

3. It may be mentioned here that the B. O. C (Pine Line) Ltd. had contracted with M/s. National Transport (India) Pvt. Ltd. that the latters Motor Bus No. ASA 3310 would regularly carry the formers employees at the lunch time from the Pine Line Office at Bamuni Maidan to Gauhati town and then carry them back after their lunch to the pipe Line Office. On the date of accident the bus No. ASA 3310 having gone out of order M/s. National Transport arranged the bus No. ASA 3482 belonging to M/s. National Transport (India) Pvt. Ltd. for carrying the employees of the Pipe Line during lunch to and from their residence.

4. Claim Case No. 99 of 1966 was filed by Srimati Swarnalata Dutta Barua on behalf of herself and her two minor sons claiming a sum of Rs. 75,000 as compensation for the death of her husband late Devendra Chandra Dutta Barua one of the victims of the aforesaid accident. He was aged 32 years and six months at the time of his death and he used to draw Rs. 405/- as his monthly salary. In Claim Case No. 100 of 1966 the claimant is the widow of late Lakshi Nath Hazarika, another victim of the accident. He was aged 63 years at the time of his death and his monthly salary at that time was Rs. 310/-. The claimant Srimati Labonva Bala Hazarika in this case has claimed a sum of Rs. 20,000/- as compensation. In both the cases the owner of the ill-fated bus No. ASA 3482, namely M/s. National Transport (India) Pvt. Ltd. was arrayed as opposite party No. 1 and the insurer of the vehicle M/s. New India Assurance Co. Ltd. was arrayed as opposite party No. 2.

5. Both the opposite parties filed their written statements, separately, and contested the cases. There is no dispute about the death of those two persons in the accident as mentioned above. There is also no dispute that the bus No. ASA 3482 was involved in the accident and that this bus belonged to opposite party No. 1 and stood insured with opposite party No. 2. The fact that late Devendra Chandra Dutta Barua and late Lakshi Nath Hazarika were employees of the B. O. C. (Pipe Line) Ltd. at the relevant time and that the former drew a monthly salary of Rs. 405/- and the latter drew a monthly salary of Rs. 310/- was also not denied. The opposite parties, however, denied their liability to pay any compensation to the claimants. According to opposite party No. 1, the accident took place not due to any defect of the motor bus, nor due to any negligence or misconduct on the part of its driver, but due to the negligence of the Railway authority in leaving the gate at the level crossing unmanned. The claims were also resisted on the ground of limitation, non-joinder and mis-joinder of parties. The opposite party No. 2 pleaded that the vehicle in question (ASA 3482) was used at the relevant time in violation of the terms and conditions of the policy under which it stood insured in that the bus which was insured as stage carriage was used as a contract carriage and it plied on a route which was beyond the limits of the area presc