Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 1239 (ALL)

New India Assurance Company Ltd v. Pavitri Devi

2007-04-26

PRAFULLA C.PANT

body2007
P. C. PANT, J. This appeal, preferred under Section 110-D of the Motor Vehicles Act, 1939, readwith Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment and award dated 31st July, 1990, passed by the Motor Accident Claims Tribunal/district Judge, Chamoli, whereby M. A. C. Case No. 9 of 1989 has been decided and an amount of compensation to the tune of Rs. 45,000 has been awarded in favour of the claimant. The Tribunal has further directed that out of said amount Rs. 25,000 shall be paid by the New India Assurance Company Ltd. , while rest Rs. 15,000 shall be paid by Budhi Ballabh Joshi, owner of the vehicle and a sum of Rs. 5,000 shall be paid by Raj Pal Singh, driver of the vehicle. 2. Heard Mr. R. B. Agrawal, learned Counsel for the appellant and perused the papers on record. No one turned up on behalf of the respondents even after being served personally. 3. Brief facts of the case are that claimant Pavitri Devi is widow of deceased Kundan Singh. On 29th May, 1989, Kundan Singh (deceased) was travelling from Rudraprayag to Mohan Khal in a Bus D. C. M. Toyota Bearing Registration No. U. S. Y. /3637. At about 10. 30 a. m. , when the vehicle reached near Chopta, the vehicle met with an accident and Kundan Singh died on the spot. The vehicle registration No. U. S. Y. /3637 is owned by respondent Budhi Ballabh Joshi. It was being driven rashly and negligently by the driver Raj Pal Singh. Respondent Prem Singh was the conductor in said vehicle. In the claim petition, it is alleged that deceased was a mason and used to earn Rs. 1,500/- p. m. Claimant, who is widow of the deceased, was dependent on him. The vehicle at the time of accident was insured with New India Assurance Company Ltd. (present appellant) under policy No. 3132190300191. The claimant sought compensation to the tune of Rs. 50,000/-, before the Motor Accident Claims Tribunal. 4. The appellant Assurance Company contested the claim petition and took a plea that its liability is limited only upto Rs. 15,000. The other respondents also contested the claim petition alleging that the accident had taken place due to the mechanical failure of the steering. They further pleaded that the amount claimed is excessive. 5. 4. The appellant Assurance Company contested the claim petition and took a plea that its liability is limited only upto Rs. 15,000. The other respondents also contested the claim petition alleging that the accident had taken place due to the mechanical failure of the steering. They further pleaded that the amount claimed is excessive. 5. The Motor Accident Claims Tribunal, on the basis of pleadings of the parties, framed following issues in the case : (1) Whether, Kundan Singh died in an accident on 29th May, 1989, at about 10. 30 a. m. , on his way from Rudraprayag to Phokri in Bus D. C. M. Toyota Bearing Registration No. U. S. Y. 3637, if so, its effect? (2) Whether, the vehicle was being driven rashly and negligently by its driver defendant No. 3 Raj Pal Singh, if so, its effect? (3) Whether, the liability of the Insurance Company (defendant No. 1) was limited only to the extent of Rs. 15,000/-, as alleged in its para 15 of the written statement? (4) Whether, the accident had occurred due to the mechanical failure as alleged in para 16 of the written statement of defendant No. 1, if so, its effect? (5) Whether, the amount of compensation claimed by claimant is excessive, as alleged in the written statement filed by respondent Budhi Ballabh Joshi, owner of the vehicle? (6) To what amount of compensation, if any, the claimant is entitled? 6. After recording the evidence and hearing the parties, the Tribunal found that Kundan Singh while travelling in Bus D. C. M. Toyota Bearing Registration No. U. S. Y. /3637, died in an accident on 29th May, 1989, at 10. 30 a. m. , on his way from Rudraprayag to Phokri. It further found that defendant Raj Pal Singh, driver of the vehicle, was rash and negligent in driving the vehicle. The Tribunal further found that the accident did not occur due to the mechanical failure to the steering. The Tribunal did not accept the contention of the Insurance Company that its liability is limited only to the extent of Rs. 15,000/ -. On the amount of compensation, it found that the claimant is entitled to Rs. 45,000/-, out of which Rs. 25,000/- were directed to be paid by the Insurance Company. 7. The Tribunal did not accept the contention of the Insurance Company that its liability is limited only to the extent of Rs. 15,000/ -. On the amount of compensation, it found that the claimant is entitled to Rs. 45,000/-, out of which Rs. 25,000/- were directed to be paid by the Insurance Company. 7. Learned Counsel for the appellant argued that Motor Vehicles Act, 1988, came into force w. e. f. 1st July, 1989. He pointed out that the accident had taken place on 29th May, 1989, i. e. before the enforcement of the new Act. As such, it is contended that the claim petition was governed by the provisions of Motor Vehicles Act, 1939. Having heard learned Counsel for the appellant, this Court accepts the contention of the learned Counsel, as it is evident from the record that the accident in which Kundan Singh died relates to the period prior to the enforcement of the Motor Vehicles Act, 1988. 8. The policy under which vehicle was ensured on the date of accident is paper No. 20-C, in the record of the Tribunal. In the column "liability to public risks" it is clearly mentioned that limit per passenger is Rs. 15,000/-, only. Having gone through said paper, this Court is of the view that the Tribunal has committed error of law by ignoring the terms of the policy. The Tribunal, while rejecting the Insurance Companys case on the ground that it is not clear whether the liability of the Insurance Company is to the tune of Rs. 15,000/- or to the tune of Rs. 45,000/ -. The reasoning mentioned by the Tribunal is misconceived, as limit of Rs. 45,000/-, is the total limit for maximum twelve passengers. 9. In the above circumstances, this Court finds that the Tribunal has committed error of law by directing the New India Assurance Company Ltd. to pay compensation to the tune of Rs. 25,000/- out of the sum awarded i. e. Rs. 45,000/ -. The liability of the Insurance Company should not have exceeded Rs. 15,000/ -. In the circumstances, the appeal deserves to be allowed to that extent. 10. For the reasons, as discussed above, the appeal is allowed to the extent that the appellant New India Assurance Company Ltd. is liable to make payment only to the limit of Rs. 15,000/-, out of Rs. 45,000/- awarded as compensation, to the claimant. 15,000/ -. In the circumstances, the appeal deserves to be allowed to that extent. 10. For the reasons, as discussed above, the appeal is allowed to the extent that the appellant New India Assurance Company Ltd. is liable to make payment only to the limit of Rs. 15,000/-, out of Rs. 45,000/- awarded as compensation, to the claimant. The impugned award dated 31st July, 1990, is accordingly, modified. The amount of Rs. 10,000/- in respect of which the liability has wrongly been placed on the appellant, shall be recoverable by it from the owner of the vehicle. No order as to costs. Appeal allowed. .