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1976 DIGILAW 799 (ALL)

GOPI NATH MADAN MOHAN v. KISHORIA

1976-11-23

GOPI NATH

body1976
JUDGMENT : Gopi Nath, J.—This is a first appeal from order of the District Judge, Rampur dated 20-10-1973 allowing the Petitioners claim for compensation u/s 110A of the Motor Vehicles Act. The Petitioners were the mother and father of the deceased. 2. The allegation made in the petition was that the deceased was going on a cycle on Bareilly Moradabad road on 25-3-1969. He was crushed by the truck No. USL 9058 which dashed against him while he was going on his left on the road. The incident took place at 2 p.m. Two rickshaw walas namely, Nawab Ali (P.W. 4) and Ram Singh (P.W. 5), who were passing on the same road witnessed the incident. A F.I.R. was lodged. The deceased died on the spot. Post-mortem was performed and the body was delivered to the parents. The Petitioners case was that the truck was in high speed. It was being driven on the wrong side of the road. The driver was not able to control the truck. It turned against the deceased and crushed him on the spot. Nawab Ali (P.W. 4) and Ram Singh (P.W. 5) tried to stop the truck but the driver did not stop it and disappeared. A police report was lodged. 3. The Petitioners preferred a claim u/s 110A of the Motor Vehicles Act, for a sum of Rs. 15,000/- by way of compensation. The claim was originally preferred against one Inayatullah as the owner of the truck and the Northern India General Insurance Co. as the company securing the risk. Later the petition was amended and M/s Gopi Nath Madan Mohan and Awadh Behari were impleaded as the owners of the truck and M/s General Insurance Corporation of India unit: New India Assurance as the insurance company. The amendment was sought after some lapse of time as the Petitioners did not know who the real owners were and they had preferred the claim against Inayatullah as the owner. The amendment was allowed and the present Appellants were impleaded as the owners though at a late stage. An objection was raised before the Tribunal that the amendment was belated and the claim was time barred against the new parties impleaded. The objection was rejected on the ground that good cause had been furnished by the Petitioners for the impleadment of the parties at a late stage. An objection was raised before the Tribunal that the amendment was belated and the claim was time barred against the new parties impleaded. The objection was rejected on the ground that good cause had been furnished by the Petitioners for the impleadment of the parties at a late stage. They could be impleaded only when information about their being owners of the vehicle was received by the Petitioners. 4. The Appellants admitted themselves to be the owners of the truck. They pleaded that the petition was barred by time against them and they also denied the negligence of the truck driver in the accident. 5. The tribunal allowed the claim to the extent of Rs. 9,000/- against the present Appellants and the insurance company on the ground that the driver was negligent and rash in driving the truck and the accident took place due to his rash and negligent driving. It was found that the deceased was cycling on his left while the truck was going on its right. The truck was found to be in high speed and the accident was found to have occurred due to rash and negligent driving of the driver. Nawab Ali and Ram Singh were witnesses of the occurrence. They had seen the incident and had stated that the truck was in high speed and that it was going on the wrong side. The learned Judge accordingly concluded that the deceased Ghanshyam died entirely on account of the driver's fault. 6. Learned Counsel for the Appellants urged that the speed of the truck was not given by the eye witnesses and since all that they said was that it was in high speed it could not be inferred that it was a rash driving. The learned Judge has found that the witnesses had clearly stated that the truck was in a very high speed and was out of the control of the driver. Further the truck was moving on its right side under the doctrine res ipsa loquitur a presumption arises that if a vehicle was being driven on the wrong side and an accident took place it would be due to the negligence of the driver. From the evidence on record the learned Judge was satisfied that the driver had not exercised due care which an ordinary prudent man would have observed. In these circumstances the finding has to be confirmed. 7. From the evidence on record the learned Judge was satisfied that the driver had not exercised due care which an ordinary prudent man would have observed. In these circumstances the finding has to be confirmed. 7. Learned Counsel then urged that the claim was barred by time as the impleadment of the new parties namely the owners of the truck and the insurance company was made beyond the period of 60 days, prescribed for preferring the claim. I find no force in this submission either. Section 110A of the Act permits the Tribunal to condone the delay. Sufficient cause was found to exist in the impleadment of the parties beyond time. The Petitioners did not know who the real owner was and on the information received impleaded Inayatullah as the real owner but subsequently when they came to know that the Appellants were the owners they impleaded them as opposite parties. The discretion in condoning the delay was properly exercised and no error exists in the order made by the learned Judge. In Harbans Singh Vs. Atma Singh and Others , it was held that where a claim was filed against the hirer of the truck on the mistaken belief that he was the owner, the impleadment of the real owner at a later stage on the discovery of that fact was proper and the delay worthy of condonation on the ground that sufficient cause existed for impleading the owner at a late stage. See also Bessarlal Laxmichand Chirawala Vs. Motor Accidents Claims Tribunal, Greater Bombay, , and in Swaran Kaur Vs. The State of Punjab, . 8. Learned Counsel for the Appellant relied on the decision in The Collector, Jabalpur and Another Vs. Kamal Kumar Jain and Others, , for the proposition that a claim filed beyond time has to be dismissed in view of Section 3 of the Limitation Act. If sufficient cause is not shown the claim has to be dismissed. But if such a cause is shown the Tribunal is empowered to condone the delay. 9. Learned Counsel has drawn my attention to case in The Bihar Co-operative Motor Vehicles Insurance Society Ltd. Vs. Rameshwar Raut and Others, for the proposition that the addition of parties should not be allowed beyond the period of limitation. In that case the claim was filed by one of the legal representatives of the deceased. 9. Learned Counsel has drawn my attention to case in The Bihar Co-operative Motor Vehicles Insurance Society Ltd. Vs. Rameshwar Raut and Others, for the proposition that the addition of parties should not be allowed beyond the period of limitation. In that case the claim was filed by one of the legal representatives of the deceased. The other legal representatives wanted to be impleaded in order to obtain a share in the compensation. The instant case is different on facts. Thus the claim was not barred by time No other point was urged. The appeal fails and is dismissed with costs.