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2006 DIGILAW 303 (AP)

SURESH KUMAR SOOD v. MUNNI BEGUM

2006-03-03

M.M.GHILDIYAL, RAJEEV GUPTA

body2006
RAJEEV GUPTA, C. J. ( 1 ) MR. Rajendra Dobhal, Advocate on behalf of Mr. Lokendra Dobhal, learned Counsel for the appellant. Mr. Deepak Rawat, Advocate for respondents Nos. 1 to 8. None for respondent No. 9. Mr. R. B. Aggarwal Advocate for respondent No. 10, New India Insurance Company Ltd. They are heard. ( 2 ) THIS is owner's appeal against the impugned award dated 22 February, 1985 passed by Motor Accident Claims Tribunal (Special Judge), Nainital in Motor Accident claim No. 53 of 1981. ( 3 ) THE claimants claimed compensation of Rs. 3,26,400 (Rupees three lakh twenty-six thousand and four hundred only) for the death of one Munne Khan in the motor accident on 18th December, 1980 when the truck bearing registration No. UPM 9532, in which he was travelling, overturned due to the rash and negligent driving of its driver resulting in his instantaneous death on the spot, itself. The claimants further pleaded that Munne Khan used to earn Rs. 800 per month by selling milk. ( 4 ) THE owner of the offending vehicle truck (appellant) contested the claim and pleaded that deceased Munne Khan was not an occupant of the truck and as the truck was insured with the New India Assurance company Ltd. , the owner was not liable to pay compensation to the claimants. ( 5 ) THE insurer of the truck i. e. New India insurance Company Ltd. too contested the claim and pleaded that though the truck was insured with this Insurance Company, but it was not liable to pay any compensation to the claimants, as the deceased was a gratuitous passenger in a goods' vehicle. It was further pleaded that the driver of the truck was not holding a vali d driving licence at the time of the accident. ( 6 ) THE claimants examined P. W. I Munni begum (widow of deceased Munne Khan) and P. W. 2 Mahendra Singh (who too was travelling in the said truck with deceased munne Khan) in support of their case, whereas the owner of the offending vehicle truck examined D. W. I Narayana Mathur in support of his plea. The Insurance Company, however, did not examine any witness. The Insurance Company, however, did not examine any witness. ( 7 ) THE Tribunal on the evidence led by the parties, held that deceased Munne Khan was travelling in the truck as a gratuitous passenger; he died on account of the injuries sustained by him in the accident; the accident occurred due to rash and negligent driving of the driver of the truck; and as deceased munne Khan was travelling as a gratuitous passenger in a goods vehicle, the Insurance company was not liable to pay compensation to the claimants. Considering the age of deceased Munne Khan, and the evidence led by the claimants about his income, the tribunal awarded compensation of Rs. 74,200 (Rupees seventy four thousand and two hundred only) to the claimants and, while exonerating the Insurance Company, the owner of the truck i. e. the appellant was directed to pay compensation to the claimants. ( 8 ) MR. Rajendra Dobhal. Advocate on behalf of Mr. Lokendra Dobhal, learned counsel for the appellant vehemently argued that the Tribunal has erred in discarding the evidence of the appellant's witness D. W. I narayan Mathur; in holding that deceased munne Khan was travelling in the truck; and in exonerating the Insurance Company from its liability to pay compensation to the claimants. ( 9 ) MR. R. B. Aggarwal, learned Counsel for the New India Assurance Company, on the other hand, supported the award and submitted that the view taken by the Tribunal in exonerating the Insurance Company is in line with the Apex Court dictum in the case of New India Assurance Company Ltd. v. Asha rani and the subsequent judgments on the subject. ( 10 ) MR. Deepak Rawat, learned Counsel appearing on behalf of respondent Nos. 1 to 8 (claimants) too vehemently argued that the insurance Company has been wrongly exonerated by the Tribunal. ( 11 ) THE Tribunal has relied upon the evidence of P. W. 2 Mahendra Singh in holding that deceased Munne Khan was travelling in the appellant's truck and died on account of the injuries sustained by him in the accident when the truck overturned due to the rash and negligent driving of the driver of the truck. ( 12 ) TRUE, appellant's witness D. W. I narayan Mathur too claims to be in the same truck. ( 12 ) TRUE, appellant's witness D. W. I narayan Mathur too claims to be in the same truck. On a close scrutiny of the evidence of d. W. I Narayan Mathur, we are satisfied that the Tribunal has rightly discarded his evidence. In fact, the appellant ought to have examined the driver of the truck who was the best person to narrate as to how the accident occurred. For the reasons best known to the appellant, the driver was not examined before the Tribunal. The evidence of P. W. 2 Mahendra Singh who was travelling in the same truck with deceased Munne Khan does not suffer from any infirmity whatsoever. Though he was subjected to a lengthly cross-examination by the owner of the truck, nothing could be elicited in his cross-examination which may render his evidence unworthy of evidence. The Tribunal has given cogent reasons for relying upon the evidence of P. W. 2 Mahedra Singh in preference to the evidence of D. W. I Narayan mathur. On a thorough examination of the evidence of P. W. 2 Mahendra Singh and d. W. I Narayan Mathur, we do not find any reason for taking a different view about their evidence than the one taken by the Tribunal. ( 13 ) THE appellant's next submission that the Tribunal has erred in exonerating the insurance Company from its liability to pay compensation to the claimants, need not detain us any more, as the said issue stands finally decided by the Apex Court in the case of New India Assurance Company Ltd. v. Asha rani (supra), wherein the earlier view taken in the case of New India Assurance Co. Ltd. v. Satpal Singh was overruled. The view taken by the Apex Court in the case of Asha Rani has been consistently followed in the cases of national Insurance Company Ltd. v. Ajit Kumar; oriental Insurance Company Ltd. v. Devireddy konda Reddy; National Insurance Company ltd. v. Baljit Kaur; Pramod Kumar Agrawal v. Mushtari Begum; and in the case of National insurance Company Ltd. v. Bommithi subbhayamma and others. ( 14 ) IN the present case, there is no dispute that the vehicle in question was a goods vehicle. It has been held by the Tribunal that deceased Munne Khan was a gratuitous passenger in the truck. ( 14 ) IN the present case, there is no dispute that the vehicle in question was a goods vehicle. It has been held by the Tribunal that deceased Munne Khan was a gratuitous passenger in the truck. Thus, we do not find any infirmity in the finding recorded by the Tribunal exonerating the Insurance company from its liability to pay compensation and holding the owner of the truck alone liable to pay compensation to the claimants. ( 15 ) THE learned Counsel for the appellant then challenged the quantum of compensation assessed by the Tribunal. The 2. I (2000) ACC1 (SC)=x (1999) SLT 175=2000 ACJ 1. 3. III (2003) ACC 277 (SC)=v (2003) SLT 453=2003 acj 1931. 4. I (2003) SLT 515=1 (2003) ACC 214 (SC)=2003 acj 468. 5. I (2004) ACC 295 (SC)=i (2004) SLT 269=2004 acj 428. 6. III (2005) ACC 357 (SC)=v (2004) SLT 170= 2004 acj 1903 . 7. V (2005) SLT 348=iii (2005) ACC 423 (SC)=2005 (2) ACJ 721. finding about the income of the deceased is based on the evidence of P. W. I Munni begum and P. W. 2 Mahendra Singh. The appellant did not adduce any evidence in rebuttal. The Tribunal, therefore, has not committed any illegality in assessing the income of the deceased at Rs. 800 per month. The Tribunal, in fact, has been somewhat miser in awarding compensation of Rs. 74,200 (Rupees seventy-four thousand and two hundred) only. The deduction of 30% made by the Tribunal on account of the accelerated payment to the claimants, was quite unnecessary. Since the claimants have not filed any appeal or cross-objection, we leave this issue there only. ( 16 ) THUS, on a re-examination of the entire matter, we are satisfied that the Tribunal has rightly held that deceased Munne Khan was travelling in the appellant's truck; that he died on account of the injuries sustained by him in the accident; that the accident occurred due to rash and negligent driving of the appellant's driver; that deceased Munne khan was a gratuitous passenger in the goods vehicle and, as such, the Insurance Company was not liable to pay compensation to the claimants and the owner of the truck, alone, was liable in that behalf. ( 17 ) AS we do not find any infirmity in the findings recorded by the Tribunal, the appeal filed by the appellant against the impugned award fails and is, hereby, dismissed. No order as to costs. - .