The insurer is liable to pay compensation if the vehicle was insured with the insurer on the relevant date.

JUDGMENT :

G.B. Patnaik, J. - This is an appeal u/s 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') against an award of the Second Motor Accidents Claims Tribunal, Cuttack, in Miscellaneous Case No. 178 of 1984.

2. The claimants had filed the application u/s 110-A of the Act claiming compensation to the tune of Rs. 1,30,000/-alleging that when the deceased was going on the road on the National Highway No. 5 on 2.2.1984, at 5.00 a.m., the offending truck bearing registration No. CSC 5480 knocked him down from his back side as a result of which the deceased sustained fatal injury. He was immediately removed to the S.C.B. Medical College Hospital, Cuttack, where he succumbed to the injury on the very same day at 6.00 p.m. It was averred in the claim petition that the deceased was earning Rs. 1,500/- per month and was contributing Rs. 1,000/- for the maintenance of the family. The claimants are the widow, the minor daughters and the widowed mother of the deceased.

3. The owner did not contest the proceeding, but the insurer contested the proceeding denying the allegations made in the claim petition. Even the insurer denied with regard to the insurance of the offending truck. It had also taken a plea that the deceased was a passenger in the goods vehicle for hire and having died on account of the accident, the insurer is not liable to pay any compensation.

4. The Tribunal came to hold that the deceased was a passenger in the truck which was involved in the accident. The said truck was being driven rashly and negligently by the driver. The deceased as a passenger sustained the injury on account of the accident and ultimately succumbed to the injury. On the quantum of compensation, the Tribunal found that a sum of Rs. 36,000/-would be the just compensation. But in view of the finding that the deceased was travelling in the truck as a passenger when the accident occurred, the Tribunal held that the insurer was not liable to pay any compensation and accordingly allowed the application ex parte against the owner and dismissed the same as against the insurer. It is against this award, the present appeal has been preferred both on the ground of insufficient compensation having been awarded and on the ground of exonerating the insurer from liability.

5. Mr. S. Mohanty appearing for the appellants contends that the Claims Tribunal committed gross error of law in recording a finding that the deceased was travelling on the offending truck as a passenger solely relying upon the charge-sheet, Exh. 1, that had been filed in the criminal case and in not considering the oral evidence adduced by the claimants. Mr. Mohanty further urges that the claimants having filed an application to issue notice to the insurer to give discovery of the insurance policy on 18.6.1986 and the insurer having taken several adjournments to produce the policy and having ultimately failed to produce the same, it would be legitimate for the court to draw adverse inference and, therefore, it is not open for the insurer to take a stand that the vehicle had not been insured. Mr. Mohanty also urges that the plea of the insurer to the effect that the vehicle had not been insured was taken in a written statement that was filed on 14.8.1986 when claimants' application to allow them to further examine witnesses was allowed. Therefore, that stand in the written statement cannot at all be taken into consideration as the insurer had not taken such a plea in the written statement filed earlier. So far as the quantum of compensation awarded is concerned, Mr. S. Mohanty contends that the amount in question is grossly low.

Mr. Roy for the insurer, on the other hand, contends that in view of the stand taken in the written statement that the vehicle has not been insured and in the absence of any finding to that effect, no liability can be fastened on the insurer.

6. In view of the rival submissions of the parties, the first question that arises for consideration is wh