S.C. AGARWAL, J.—This appeal has been filed under Section 110-B of the Motor Vehicles Act, 1939 ( hereinafter referred to as "the Act"), by Smt. Gyarsi Devi ( hereinafter referred to as "the Claimant") against the award, dated 18th December, 1975, made by the Motor Accidents Claims Tribunal (hereinafter referred to as the "Claims Tribunal in Civil Miscellaneous (M.A.C. Case No. 2 of 1971. In the case aforesaid, the claimant had claimed a sum of Rs. 50,000/- as compensation on account of death of her son, Om. The Claims Tribunal has awarded an amount of Rs. 30,6000/- as compensation to the claimant against Bashir Ahmad, respondent No. 2. but has dismissed the said claim as against Sain Das, respondent No. 1, and the New India Assurance Company Limited, respondent No. 3.

2. The aforesaid claim relates to an accident which took place on 16th August, 1970 at about 5.15 P.M. at Ramganj Chopar in Jaipur City. The case of the claimant is that at the time of the accident, the deceased Om and Om Kishan were sitting at Ramganj Chopar on the footpath and were selling Rakhees A truck bearing No.RSL 2367, driven by respondent No. 2, came from the side of Char Darwaja. The said truck was being driven at a high speed and it first collided with a city bus and thereafter hit a cyclist and ultimately it went on the footpath, where the two boys, Om and Kishan, were selling Rakhees, and crushed them. Om, the son of Smt. Gyarsi Devi, died on the spot as a result of the injuries sustained by him, whereas the other boy, Kishan died in the Hospital. On 7th July, 1971, the claimant filed the claim petition, wherein, she claimed Rs. 50 000/- (Rs. 25.000/- as compensation for the loss of benefit of the support of her only son, and Rs. 25,000/- as compensation for nervous shock, pain, mental agony and suffering). In the said claim, Sain Das respondent No. 1, the owner of the truck, Bashir Ahmed, respondent No.2, the driver of the truck, and the New India Assurance Co , Ltd.; respondent No. 3, the insurer of the truck, were impleaded as opposite parties.

3. The said claim was contested by respondents Nos. land 3, who filed a joint written statement, wherein, it was stated that respondent No. 2, Bashir Ahmad, who was driving the truck at the time when the accident took place, bad not been employed by respondent No. 1 as a driver, and that he was only a cleaner, and that, at the time of the accident, respondent No. 2 was not working during the course of business and employment of respondent No. 1. According to the said written statement, on the date of the accident, the truck had brought stones from Kota and the driver of the truck had taken the truck to Jhotwara Road, near T.B. Sanatorium for the purpose of unloading the stones at the godown of the consignee of the said stones, and as the unloading was likely to take some time, the driver of the truck had gone away to take his meals etc. and respondent No. 2, was left near the truck to keep a watch over the truck and that during the absence of the driver of the truck, respondent No. 2 took away the truck without the permission of the driver and went to Amer, and that on the way, he consumed alcohol and while returning, he caused the accident at Ramganj Chopar According, to the aforesaid written statement, the said act of respondent No. 2 was wholly unauthorised and unwarranted and was not connected with his employment and job, and that neither respondent No. 1, nor respondent No. 3 were liable for the wrongful action of respondent No. 2. In the said written statement, respondents Nos. 1 and 3 have also submitted that the amount for compensation, claimed by the claimant was highly excessive.

4. On the basis of the aforesaid pleadings, the Claims Tribunal framed the following issues: —

1 Whether Om Prakash died on 16 8.70 because of the rash and negligent driving of the truck RSL 2367 by Bashir Ahmad opposite party No. 2 ?

2. Whether Bashir Ahmad was only a cleaner of the truck and was not driving the truck RSL 2

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