C.A. Rahim, J.
1. The two appeals, namely first appeal from Order No. 631 of 1978 and First Appeal Order No. 632 of 1978 have been taken up together in view of the fact that both the appeals arise out of an accident held on 15.12.1968 at 9.45 p.m. by petrol tanker No. UOPU 4074. From the record it appears that First Appeal From Order No. 631 of 1978 was dismissed for default on 18.8.1991. A restoration petition was filed on 30.1.1992. Heard learned Counsel for both sides and after considering the submissions and the facts thereto we find that the grounds for nonappearance of the learned Counsel are satisfactory. The petition for restoration is, therefore, allowed and the case is restored to its original file and number. Final hearing of the appeal was thereafter taken on considering both the parties.
2. These two appeals arise out of the Motor Accident Claim Case Nos. 7 of 1969 and 16 of 1969 started by Sita Ram and Chhitfar Mal as claimants. It has been stated that both these two persons were injured in that accident. Sita Ram was a passes by. While the tanker, which according to the prosecution was being driven at high speed, rashly and negligently, dashed a telephone pole and thereafter ran into tea shop. The stone chajja of the aforesaid tea shop was smashed and the wooden door of that tea shop was blown, Chhittar Mal was the owner of the tea shop. Both the injured were sent to Hospital and treated there. The learned Tribunal Judge awarded Rs. 64358.94 to Sita Ram in Motor Accident Claim Case No. 7 of 1969 and Rs. 20,000/- to Chhittar Mal in Motor Accident Claim Case No. 16 of 1969. In both the cases learned Judge passed an order that the Insurance Company shall pay Rs. 10,000/- to each of the injured persons and the balance will be paid by the owner (in Motor Accident Claim Case No. 16 of 1969) and by the owner and driver (in Motor Accident Claim Case No. 7 of 1969). Being aggrieved by the said award of the learned Tribunal Judge the owner of the tanker preferred these two appeals.
3. In both appeals Insurance Company being respondent No. 2 appeared but during the hearing none on behalf of the Insurance Company appeared and took part in the hearing. Learned Counsel appearing on behalf of the owner-appellant has submitted that there was no negligence on the part of the driver of the tanker as it was being driven slowly and cautiously. The case of the owner is that from a nearby lane a cyclist came on the way of the tanker suddenly and the tanker went out of the control and caused accident. He has also submitted that there was contributory negligence on the part of Sita Ram who was passing along with that road. Learned Tribunal Judge did not appreciate the contention of the owner and held that there was negligence on the part of the driver as the tanker was being driven rashly and negligently. In the judgment learned Tribunal Judge held that the said plea was a belated one and taken after three years of the accident when written statement was amended by them. It was stated in the W.S. that the tie-rod was also broken and the accident occurred which was not established. The learned Judge held that the manner in which the accident was caused is sufficient to conclude that the driver was negligent and that it was running at a high speed. He has referred that has it been so that the tanker was being slowly driven, it would have stopped when it struck the telephone pole, instead it had not only hit Sita Ram but also ran inside the tea shop by smashing the stone chhajja and breaking the door of the tea shop after dashing the telephone pole. After going into the judgment we find that the learned Tribunal Judge has considered the plea of the owner in all respect and has rightly concluded that the accident was caused due to rash and negligent driving of the tanker at the time of the accident.
4. Learned Counsel has again submitted that the learned Tribunal Judge could not appreciate the implication of Section 95(2)(a) of the Motor Vehicles Act of 1939 as amended in 1956 and awarded Rs. 10,000/- only against the Insurance Company in each case. He has submitted that the Insurance Company is liable to pay Rs. 20,000/- to each of the injured persons. He has referred the case of Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji Modi and Ors. wherein
it has been held that the insurer's liability is to the extent of Rs. 20,000/- where more than one person is injured or died. But it has also been held that it extends in respect of each of the person so affected in the course of the same accident. It appears from the record that apportionment of the award was not properly done by the learned Tribunal Judge. It also appears that in Motor Accident Claim Case No. 7 of 1969 he awarded Rs. 64,358.94 in all and ordered that the Insurance Company shall pay Rs. 10,000/- and balance would be paid by the owner and driver. In Motor Accident Claim Case No. 16 of 1969 learned Judge awarded Rs. 20,000/ - to the injured and ordered that the Insurance Company shall pay Rs. 10,000/- and the balance would be paid by the owner.
5. In view of the decision of Hon'ble Supreme Court the Insurance Company is liable to pay Ri. 20,000/- to each of the injured persons under Section 95(1)(a) of the Motor Vehicles Act, 1939 as amended in 1956. The insurer is, therefore, directed to pay Rs. 20,000/- to Sita Ram in Motor Accident Claim Case No. 7 of 1969 (First Appeal From Order No. 632 of 1978) and the balance would be paid by the owner of the tanker. Learned Tribunal Judge has wrongly held that the driver of the tanker would also pay compensation to the injured. The appeal is, therefore, allowed in part and the award of the learned Judge is modified to the extent as stated above. The award against the driver of the tanker is hereby set aside.
6. In First Appeal From Order No. 631 of 1978 it is hereby directed that the Insurance Company will pay Rs. 20,000/- (In Motor Accident Claim Case No. 16 of 1969) to the injured persons Chhlttar Mal and the award of the learned Judge is modified accordingly. There will be no order as to costs in respect of both the appeals.