Pole Samabhanna Vs. the State

.....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...........50/- for the contravention of the supply department's notification no. 43 dated 28-5-1951. the first ground urged by the learned advocate for the petitioner is that the lower court while trying the case summarily did not abide by the provisions of section 12, essential supplies (temporary powers) act, and that the trial was therefore illegal and void.2. i find that there is force in this argument. section 12, essential supplies (temporary powers) act, provides that any magistrate empowered to try in a summary way the offences mentioned in criminal p. c, section 260, may, on application in this behalf being made by the prosecution, try in a summary manner the offences under the essential supplies (temporary powers) act. it is therefore clear that unless the prosecution makes an application requesting for the trial of the offence in a summary manner, the magistrate cannot try the case summarily.3. in this case there is no application on behalf of the prosecution praying for the trial of the case in. a summary manner. the learned advocate argues that such an application may be made orally as well. no doubt there is nothing in the section to indicate that the application must be in writing only. oral application is therefore permissible. but there must be something on the record to show that such an application was made, and was considered by the trying magistrate and tliat he decided to proceed summarily having applied his mind to such an oral application. there is nothing in the order sheet of the magistrate of the lower court to show that an oral application was made or that he decided to assume jurisdiction to try the case summarily. thus it is clearly a case of illegality. the magistrate had no jurisdiction to proceed with the case summarily.4. i therefore set aside the conviction and sentence passed by the lower court and send the case back to that court in order that a fresh trial be held in accordance with the provisions of the law. revision petition is.....