Mohd. Suleman 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...........for that purpose. the magistrate refused to give time and closed the ease and decided the same on merits.the learned counsel for revision petitioner argues that under section 256, cr.pc it was the duty of the magistrate to grant the accused an adjournment so that the witnesses may be cross-examined at the next hearing of the case. we are of the opinion that there is much force in the argument. the learned government advocate shri k. srinivasa raghava chari argues that under section 256 if the magistrate for reasons to be recorded in writing so thinks fit he may ask the accused to cross-examine, the witnesses forthwith. we do not find any such order on the record in this case, that the magistrate wanted to proceed with the case forthwith. under the circumstances, there has been a clear contravention of the mandatory provisions of section 256, cr.pcwe are of the opinion that the case must go back to the court of the magistrate to be tried from that stage giving time to the accused to cross-examine the prosecution witnesses in compliance with section 256, criminal p. c. we are fortified in our view by the case reported in - tirlok v. emperor' air 1927 all 660 (a) in which it has been held that the accused were entitled to an opportunity of cross-examining the prosecution witnesses in accordance with the law. the learned sessions judge did not discuss this question at all, probably it was not raised before him.2. we therefore set aside the conviction and the sentence passed by the two lower courts and direct that the accused be given an opportunity to cross-examine the prosecution witnesses as above and dispose of the case according to law.3. this order will govern the criminal revision no. 255/54 in which the same question is involved.