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2004 DIGILAW 1304 (RAJ)

New India Assurance Company Ltd. v. Nirpal Singh

2004-09-10

N.K.JAIN

body2004
JUDGMENT 1. - The appellant New India Assurance Company Ltd. Jaipur has filed the appeal against the judgment/award dated 30th June, 1992 passed by Motor Accident Claims Tribunal, Jaipur City, Jaipur. 2. The claimant respondent No. 1 to 3 have filed an application for compensation under Section 110-A of the Motor Vehicle Act 1939 for compensation in respect of death of Smt. Susheela. The learned Tribunal decided all the issues in favour of the claimant husband and passed an award of Rs.92,000/- with interest @12% per annum.Being aggrieved with the finding of learned Tribunal on issue No. 2 relative to liability, the Insurance Company has filed this appeal before this Court under Section 173 of the Motor Vehicles Act 1988. 3. The learned counsel for the appellant Mr. Rahul Joshi submitted this is a case of old Motor Vehicles Act 1939 and as per Section 95(2)(b) the liability of the Insurance Company was restricted to Rs. 15,000/-, in the present case as the deceased was a passenger. He has placed reliance on Noorjahan v. Sultan Rajia @ Jhaju & Others 1997 ACJ p. 1 . 4. The learned counsel for the claimant-respondents Mr. Mathur has not disputed the position of law and has frankly submitted that so far as the liability of Insurance Company is concerned, the same was up to Rs. 15,000/- only. However, Mr. Mathur submitted that in case excess amount has been paid by Insurance Company, then the same may not be ordered to be recovered from the claimant respondents, but it should be ordered to be recovered from the owner of the vehicle. Mr. Mathur has referred the judgment of the Hon'ble Supreme Court in case Oriental Insurance Company v. Cheruvakkara Nafeessu 2001 ACJ P. 1 . 5. I have considered the submissions of both the parties. There is no dispute that the deceased was passenger and as per provisions of Section 95 of the Motor Vehicles Act 1939, the liability of the Insurance Company was restricted to Rs. 15,000/- only. Therefore, the finding of the learned Tribunal whereby the liability of the Insurance Company fastened up to Rs. 50,000/- is illegal and the same is set-aside. It is held that the liability of the Insurance Company in the present case was only up to Rs. 15,000/-. 6. Mr. Mathur learned counsel for the claimant respondents submitted that the appellant Insurance Company has already paid Rs. 50,000/- is illegal and the same is set-aside. It is held that the liability of the Insurance Company in the present case was only up to Rs. 15,000/-. 6. Mr. Mathur learned counsel for the claimant respondents submitted that the appellant Insurance Company has already paid Rs. 50,000/- as per award passed by the Tribunal. It is ordered that the excess amount paid by the Insurance Company will not be recovered from the claimant-respondents but the Insurance Company will be entitled to recover the excess amount paid i.e. Rs. 35,000/- from the owner of the vehicle i.e. respondent No. 4. In case any interest amount was paid on this amount of Rs. 35,000/-, then the same will also be recovered. The findings of the learned Tribunal is modified accordingly. The balance amount in excess of Rs. 50,000/- with interest, will be recovered by claimants as per award passed by Tribunal.The appeal stands disposed of as mentioned above.Appeal Allowed - Award Modified as above. *******