Excise Department Vs. Magiah

.....the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye......1. this is an appeal submitted by (state) against the order of acquittal passed by the magistrate of alampur dated 13-4-1357f.2. the magistrate baa stated in his order that nobody was present on behalf of the abkari department, and as the accused was present and the case was one in which a summons was ordinarily to be issued, the case is dismissed for default under section 219, hyderabad criminal p.c., and the accused is acquitted.3. learned advocate for the appellant argues that the order of dismissal for default is contrary to law. he also states that a petition for adjournment was sent through the sub-inspector of abkari, but that he could not submit the same in court in good time due to sickness of his wife.4. after going through the provisions of section 219, hyderabad criminal p.c., we are of the opinion that the order of dismissal for default cannot be upheld, the proviso to the section lays down that where the complainant is a public servant and his personal attendance is not required, the magistrate may dispense with his attendance and proceed with the case.5. it is argued that 13th isfandar 1357f, was fixed for the evidence of the accused and the office note in the file of the trial court shows that the accused had taken no steps to summon the defence witnesses nor had filed list of any d. ws. it is, therefore, contended that under the circumstances, the attendance of anybody on behalf of the state was not required at all. the accused is not present before us.6. we agree with the contention that the attendance of the abkari prosecutor on the said date should have been dispensed with by the trial court under the proviso of section 319. we, therefore, accept the appeal, set aside the order of the trial court and remand the case for further trial.7. order accordingly.