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2006 DIGILAW 839 (RAJ)

New India Assurance Co. v. Ramle

2006-03-10

VINEET KOTHARI

body2006
Judgment Dr. Vineet Kothari, J.-This appeal is directed against the award dated 20.05.1995 passed by the learned Motor Accident Claims Tribunal, Baran, (hereinafter referred to as The Tribunal) in MACT Case No. 38/1991. This appeal is filed by the New India Assurance Company Ltd., on the ground that the Tribunal has erred in holding the Company liable to pay compensation for the death of one eight years old child Suresh who was trying to run behind the Tractor bearing Registration No. RPM 7278 alongwith 5-6 other children in the Village Sanwada on the fateful day of 04.04.1991 which was being driven by the Respondent No. 2 Santoshi son of Shankar Lal and when the said child failed to ride on the said running tractor and in the process got entangled himself between the mud guard and the tyre of the said tractor as a result of which he received injuries and died. 2. The Tribunal awarded a sum of Rs. 79,800/-for the said death of Suresh in favour of the claimants which was directed to be paid by the Insurance Company, the present appellant. 3. Mr. Shah for Mr. Mehta appearing on behalf of the appellant Insurance Company submitted that the Tribunal has erred in fixing the liability on the appellant because in the claim petition itself , it has been stated by the claimants that the said boy was sitting on the tractor with his Mama Shyam Lal on 04.04.1991 when the said tractor which had come to work at Thrasher was going to take the trolley and on account of rash and negligent driving by the Respondent No. 2 Santoshi, the said boy fell down and got trapped between the tyre and the mud guard and was crushed, whereas in the statement of AW. 1 Santoshi it has come that the said boy alongwith few other boys was running behind the tractor and were trying to sit on the said tractor. 1 Santoshi it has come that the said boy alongwith few other boys was running behind the tractor and were trying to sit on the said tractor. He further stated that another eye witness Shyamlal has not been produced or examined before the Tribunal and the Tribunal has erred in awarding the amount of compensation as there was violation of the conditions of the policy as the deceased was being a gratituous passenger sitting on the said tractor which was to be used only for the agricultural purposes and met with an accident for which the Insurance Company cannot be held liable to pay the amount of compensation. 4. As against this, Mr. J.S. Chouhan, learned Counsel appearing on behalf of the owner of the said tractor opposed the submissions made by Mr. Shah and submitted that there are no contradictions in the statement made by AW. 1 Santoshi and the finding arrived at by the Tribunal while passing the award is not liable to be disturbed. 5. Learned Counsel for the appellant Mr. Shah, pressed into service the Judgment in the case of New India Assurance Co. Ltd. vs. Kewal Krishan & Ors., 1994 ACJ 196 , Pankajbhai Chandulal Patel vs. Bharat Transport Co. & Anr., 1997 ACJ 993, C.N. Krishna Murthy vs. P. Shashidhara Murthy & Ors., 1999 ACJ 601 and Insurance Company vs. Om Prakash & Ors., 2005 (8) RDD 3042 (Raj). 6. On the strength of these Judgment , learned Counsel for appellant submitted that in view of the different version in the pleadings and in the statement of witness, the claim itself , was liable to be rejected and the deceased being a gratituous passenger of the said tractor and in view of the violation of the terms and conditions of the policy, the appellant Insurance Co. cannot be made liable to pay the amount of compensation as awarded by the Tribunal. 7. Having heard the learned Counsel for the parties and upon perusal of the record of the case and the statement of the witnesses, this Court is of the view, that the present appeal is liable to be dismissed. 8. The averment made in the plaint that the said boy Suresh sat alongwith his Mama Shyam Lal on the said tractor was of course, not proved on the said person Shyamlal was not even produced or examined before the Tribunal. 8. The averment made in the plaint that the said boy Suresh sat alongwith his Mama Shyam Lal on the said tractor was of course, not proved on the said person Shyamlal was not even produced or examined before the Tribunal. However, there is no reason to dis-believe the version of the driver of the said tractor Santoshi who himself was also an eye witness of the said accident and he has clearly stated in his statement recorded on 012.1994 that when he was taking the said tractor through the village, 2-3 children were running behind the tractor and tried to ride on the said tractor by catching hold of it and Suresh thus met with the accident. He immediately stopped the tractor and went to inform the owner of the tractor. In cross-examination, he however, stated that he did not inform the owner of the said tractor and remained at the place of the accident. This minor variation in the statement of Santoshi, the driver of the tractor himself , is of no significance so as to render his statement unreliable. No other contrary evidence has come on record to establish that the said boy was riding on the said tractor as a gratituous passenger. 9. In view of this, the finding of fact arrived at by the Tribunal that the accident took place on account of rash and negligent driving of the said tractor which was admittedly insured with the Insurance Company, the appellant in the present appeal, was, therefore, made liable to pay the amount of compensation jointly and severally with the owner of the said offending vehicle. The said finding is not liable to be interfered with in the instant appeal and the appeal being devoid of merit is liable to be dismissed and the same is accordingly dismissed. 10. There is no order as to costs.