The main legal point established in the judgment is the application of the Motor Vehicles Act, 1988, and relevant case laws to determine the involvement of the offending truck in the accident, the vicarious liability of the owner, and the quantum of compensation for the deceased.

JUDGMENT :

S.R. Singharavelu, J. - Being aggrieved over the award dated 9.11.2006 in Misc. Case No. 97 of 1999 before the Second Motor Accidents Claims Tribunal, Cuttack; National Insurance Co. Ltd. has preferred an appeal in M.A.C.A. No. 103 of 2007 and the claimants have preferred M.A.C.A. No. 1029 of 2006.

2. The first noted appeal is for setting aside the award on the ground that there was no involvement of the offending truck in the said accident.

3. The second noted appeal preferred by the claimant is for enhancement of quantum of the award.

4. The brief facts of the case are as follows:

At 4 p.m. on 2.1.99 while the deceased, a boy of 14 years old was riding a cycle in Cuttack-Paradeep National Highway near Tarapur, the offending truck bearing registration No. OR 05-C 5171 coming from the opposite direction driven in a rash and negligent manner had dashed against the cyclist and the latter got seriously injured and succumbed to the same on his way to the hospital.

5. In this regard, an F.I.R. was lodged by PW 2, uncle of the deceased at 6.30 p.m., i.e., within 2 1/2 hr from the time of accident. PW 3 is an eyewitness who narrated the accident.

6. The investigating agency had registered a case under Exh. 1 and proceeded with the investigation and upon finding the involvement of the offending truck issued the final form as Exh. 2. It was supported by the post-mortem report, Exh. 5; zimanama, Exh. 4 and seizure list, Exh. 3. The driver of offending vehicle and the owner were fixed.

7. The learned Counsel for the insurance company submitted that the F.I.R. contains no name of the driver and no registration number of the truck. Basing upon this, it was argued that there was no involvement of the vehicle bearing registration No. OR 05-C 5171. My attention was also drawn by the learned Counsel to the affidavits signed before the Notary by the driver as well as the owner. That was in the month of June 1999. Both had mentioned therein that the vehicle above-mentioned was not involved in the said accident. Therefore, the learned Counsel for the insurance company vehemently argued that there is no substantial evidence before us to hold that the above-mentioned vehicle had involved itself in the said accident.

8. The learned Counsel for the claimants submitted that in the affidavit of the owner of the vehicle, there was categorical admission made by him that during the said accident, his truck passed through the spot of accident. The driver in his affidavit had suppressed it and simply said that the above-mentioned vehicle did not involve in any accident at any time. The driver had admitted his driving of the vehicle during the time of accident from Cuttack to Para-deep. There is xerox copy of Oriya daily 'Samaj' dated 3.1.1999, marked as Exh. X, wherein the accident was described as made by dumper vehicle.

9. Learned Counsel for the claimants submitted that if really some other dumper had collided with the deceased and as per the owner's affidavit, the driver of the truck should have seen the accident and his failure to report to the police station, especially in the absence of any recital in the driver's affidavit about the fact of his driving the said vehicle during the time of accident through the spot of accident, may only indicate his guilt of involvement in the accident. The affidavits of the owner and driver indirectly show the involvement of the truck in accident. By applying the principle of preponderance of probabilities and the fact of admission in affidavit of the owner and such fact being suppressed by the driver in his affidavit, I am only to hold that the truck was involved in the accident.

10. The learned Counsel for the insurance company next argued that even if there was involvement of the offending truck in the said accident, the failure to implead the driver may absolve the owner from his vicarious liability. For this, he would rely upon The Oriental Insurance Company Limited Vs. Meena Variyal and Others wherein the Hon'b