Neutral Citation No. - 2022:AHC-LKO:33182 RESERVED A.F.R.

Court No. - 24 Case :- FIRST APPEAL FROM ORDER No. - 500 of 2002 Appellant :- The Oriental Insurance Company Ltd.

Respondent :- Smt. Tulsa and others Counsel for Appellant :- Pramod Kumar Counsel for Respondent :- T.C. Seth, P.K. Rai, Prem Kumar Singh, R.K.Dwivedi Hon'ble J.J. Munir,J.

1. This is an appeal by the Insurance Company, arising out of the judgment and award passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Unnao dated 05.07.2002 in Motor Accident Claim Petition No. 276 of 1999. The Insurance Company seeks to relieve itself of the liability to pay the compensation awarded.

2. On the 4^th of November, 1999, the deceased, Kali Shanker, accompanied one Radhey Lal, a native of his village, was proceeding to participate in the last rites of the latter's mother, who had passed away. The members of the funeral procession, if it could be called that, boarded an attached trolley to the tractor bearing Registration No. UP-35/9751 in order to ferry the mortal remains of Radhey Lal's mother to the cremation ground. At about half past eleven in the morning hours, as the tractor reached a place called Gadan Khera within the local limits of Police Station Kotwali Unnao, close-by to Jagat Mohan Memorial School, the tractor-trolley turned turtle. It happened because of the driver's negligence. The accident resulted in grievous injuries to Kali Shanker, who succumbed by the time he was conveyed to the hospital. Information in this regard was given to Police Station Kotwali, Unnao. The Police caused the dead body of Kali Shanker to be subjected to autopsy on 05.11.1999. On the 6^th of November, 1999, Kali Shanker's son, Jagdish got a First Information Report lodged regarding the incident. Chhota son of Chetau, opposite party to the claim petition, is the tractor owner. He died pending the claim petition and, therefore, his sons, Shivpal and Rajpal, were substituted. Besides his sons, Lal Bahadur son of Binda and Vishun son of Jagan were also impleaded as opposite parties nos.4 and 5 - all four as co-owners in Chhota's stead.

3. The Oriental Insurance Company Limited, 249/1, Civil Lines, Unnao through its Branch Manager are the the tractor's insurers. The aforesaid Insurance Company, who shall hereinafter be referred to as the 'insurers', are the appellants.

4. A joint written statement was filed by respondent nos. 2 to 5 to the claim petition, that is to say, the co-owners of the offending tractor and one on behalf of the insurers. It would be apposite to mention that while alive, Chhota too had filed a written statement.

5. The original owner, Chhota as well as the succeeding co- owners took a stand that the offending tractor was not involved in the accident. That apart, they said that the liability, if any, would be that of the insurers.

6. On the pleadings of parties, the following issues were framed (translated into English from Hindi):

(1) Whether on 04.11.1999 at 11:30 in the day near Jagat Mohan Memorial School, tractor bearing Registration No. UP-35/9751 was driven at high speed and negligently, in consequence of which the tractor- trolley turned turtle, leading to Kali Shanker's death? (2) Whether at the time of the aforesaid accident, the tractor driver had a valid and effective driving licence?

(3) Whether at the time of the aforesaid accident, the tractor and trolley were insured with the insurers?

(4) Whether at the time of the accident, the tractor and the trolley were being operated in violation of the Motor Vehicles Act?

(5) Whether the claimants are entitled to any compensation and from whom?

(6) Whether the claimants are entitled to any relief and from whom?

7. There is not much quarrel between parties about the factum of accident before this Court, which was held by the Tribunal to have resulted from the rash and negligent driving of the tractor- trolley. On the second issue, the Tribunal found that the driver had a valid driving license, e