A vehicle's overload does not equate to contributory negligence without direct evidence linking it to the accident. Liability can be wholly assigned based on the principle of primary negligence.

JUDGMENT

Jaspreet Singh, J.

This is a batch of two appeals filed by the legal heirs of deceased Akhilesh Yadav and Ajit Kumar Singh, who died in an accident on 19.8.1995, which was caused on account of a collision between a jeep bearing no. MGR 867 and a truck bearing No. UPX 6457.

2. The legal heirs of deceased Akhilesh Yadav had filed C.P. No. 153 of 1995, which was allowed and it has given rise to F.A.F.O. No. 283 of 1998 whereas legal heirs of other deceased namely Ajit Kumar Singh had filed C.P. NO. 279 of 1995, which was also allowed and it has given rise to F.A.F.O. No. 279 of 1998. Since the claim petitions arise out of the same accident and similar questions of law and fact are involved, accordingly both the appeals have been connected and were heard together.

3. Both the appeals have been preferred by the National Insurance Company Limited, who is the insurer of the Jeep bearing No. MGR 0867 and two deceased namely, Akhilesh Yadav and Ajit Kumar Singh were the occupants of the said jeep. In order to appreciate the controversy involved in the present two appeals certain brief facts are being noticed hereinafter, which will be beneficial for adjudicating the issue raised by the counsel for the appellant.

4. The record indicates that on 19.8.1995 both Akhilesh Yadav and Ajit Kumar Singh were travelling in a jeep bearing No. MGR 0867. While the said jeep had reached near Katehari Bazar a truck bearing no. UPX 6457, which was being driven rashly and negligently came on the wrong side of the road and consequently hit the jeep from the front as a result both Akhilesh Yadav and Ajit Kumar Singh sustained injuries. They were taken to the District Hospital where they were pronounced dead. It is in the aforesaid context that the heirs of Akhilesh Yadav preferred C.P. No. 153 of 1995 whereas the legal heirs of Ajit Kumar Singh filed C.P. No. 126 of 1995.

5. Both the claim petitions came to be contested and though the owner and driver of the jeep had filed his written statement so also the owner and driver of the truck had also filed a separate written statement whereas the National Insurance Company Limited being the insurer of jeep filed its separate written statement and insurer of the truck namely United India Insurance Company Limited filed its separate written statement. The defence as taken by the owner/driver of the two offending vehicles stated that it was on account of the negligence of the Jeep driver that the accident occurred whereas the contention of the owner and driver of the jeep was that it was the truck who was rash and negligent. Thus it would be seen that both the offending vehicles tried to put the blame on the other. Both the insurance companies who had insured the truck as well as jeep respectively took the general defence that unless and until the vehicle is found to be plying as per the policy conditions and the driver concerned had valid and subsisting licence and other documents till then the insurance company could not be made liable.

6. Upon exchange of pleadings, the tribunal framed five issues. It will also be relevant to notice that it is only the claimants who entered into the witness box to depose and substantiate their respective claims. However, no witness was examined on behalf of either the Jeep owner or the truck owner or driver. No witness was also produced on behalf of the insurance companies.

7. In the aforesaid backdrop, the tribunal after considering the evidence led on behalf of the claimants including the testimony of PW-2 Khursheed Ahmad found that it was on account of rash and negligent driving of the truck driver UPX 6457, which was primarily responsible for the accident as it