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Rajasthan High Court · body

2008 DIGILAW 110 (RAJ)

National Insurance Company Ltd. v. Rukma

2008-01-15

MANAK MOHTA

body2008
Judgment Manak Mohta, J.—The instant appeal has been preferred by the Insurance Company against the judgment and Award dt. 09.11.2003 passed by learned Judge, Motor Accident Claims Tribunal, Bhilwara in Claim Case No. 79/92 (22/84), whereby the learned Tribunal has awarded compensation of Rs. 42,040/- plus interest in favour of the claimants and has held the Insurance Company liable for the entire amount. 2. Briefly stated the facts of the case are that on 07.04.1984 Devi Lal Gurjar (deceased) alongwith his son Gheesa were travelling by bus No. RJZ-9365 from Shahpura to their own village ‘Doi Ka Khera’. The bus which was being driven by Chawand Singh (respondent No.12) in a rash and negligent manner, got overturned, as a result of which, Devi Lal Gurjar received simple as well as grievous injuries and as a consequence thereof expired, certain other co-passengers also received injuries. 3. On 08.10.1984, the claimants (legal heirs of deceased Devi Lal) submitted claim petition under Sec. 110-A of the Motor-Vehicles Act, 1939 before the learned Motor Accident Claims Tribunal, Bhilwara (in short Tribunal). It was also submitted that the deceased at the relevant time was aged 45 years and was an agriculturist having 27 bigha and 7 biswas land and was also rearing cattles, thus, was earning about Rs. 1700/- per month. Due to accidental death, it was asserted that the claimant suffered monetary loss and other losses. A total of Rs. 3,44,000/- was claimed as compensation for the untimely death of Devi Lal on different heads. 4. A reply to the claim petition was submitted by the respondents i.e. the owner and the driver on 19.03.1986 wherein it was specifically pleaded that the accident did not occur on account of rash and negligent act of the driver, rather the accident took place due to technical fault developed in the bus due to road because of which the steering of the bus became free and the driver lost control over the vehicle. It was further submitted that the claimants have claimed exaggerated amount. The bus was stated to be insured with respondent Insurance Company, as such, the burden to pay compensation was that of the Insurance Company. Thus, it was prayed that the claim petition be dismissed. 5. A reply to the claim petition was also submitted by the Insurance Company denying the allegations for want of knowledge. The bus was stated to be insured with respondent Insurance Company, as such, the burden to pay compensation was that of the Insurance Company. Thus, it was prayed that the claim petition be dismissed. 5. A reply to the claim petition was also submitted by the Insurance Company denying the allegations for want of knowledge. In reply a specific stand was taken that in the absence of Priviti of contract for paying entire amount of compensation the Insurance Company cannot be held liable. The liability of Insurance Company in respect of accident is to the extent of Rs. 15,000/- only in all cases where the victim is a passenger. It was also submitted that admittedly in the present case the deceased was passenger, therefore, the Insurance Company cannot to made responsible for compensation more than that. 6. On the basis of pleadings of the parties, the learned Tribunal framed four issues, as under: ß1- vk;k foi{kh la[;k ,d us fnukad 07-04-1984 dks okgu cl la[;k vkj-ts-tsM- 9365 dks vlko/kkuh ,oa nq%Llkgliw.kZ rjhds ls pyk dj nq?kZVuk dkfjr dh ftlds dkj.k nsch dh e`R;q gks xbZ\ 2- D;k foi{kh la[;k 2 dk okgu cl la[;k vkj-ts-tsM- 9365 ls o eS- ctjax cl lfoZl ls dksbZ laca/k ugh Fkk\ 3- D;k vkosndx.k {kfriwfrZ Lo:i 3]44]000@& :- izkIr djus ds vf/kdkjh gS] ;fn gS rks fdl fdl foi{kh ls fdruh fdruh jkfÓk\ 4- vuqrks"kAÞ 7. During trial of the case the claimants produced AW-1 Mst. Rukma, AW-2 Gheesu and got recorded their statements and submitted Ex.1 First Information Report, Ex.2 Naksha Mauka, Ex.3 Mechanic Report and Ex.4 Post-mortem Report. In defence, statements of NAW-1 Chanvand, NAW-2 J.K. Agarwal and NAW-3 Dula Ram were got recorded and the Insurance Policy was got exhibited as Exh. A1. 8. The learned Tribunal at the conclusion of trial vide its judgment and Award dt. 09.11.2003 awarded a sum of Rs. 42,040/- (inclusive of the amount awarded under the ‘no fault liability’) as compensation plus interest @ 12% per annum from the date of filing of the claim petition i.e. 08.10.1984 till the date of realization of claim and made the Insurance Company liable for the payment of entire sum. Hence, aggrieved and dissatisfied with the judgment and Award of the learned Tribunal, this appeal has been preferred by the Insurance Company. 9. Hence, aggrieved and dissatisfied with the judgment and Award of the learned Tribunal, this appeal has been preferred by the Insurance Company. 9. During the course of arguments learned counsel for the Insurance Company mainly stressed on the point that the accident occurred in 1984 and admitting the deceased was sitting in the bus as a passenger, therefore, considering the legal position on the day concerned, the Insurance Company could not be made responsible to pay more than then Rs. 15,000/- in case of a passenger sitting in the vehicle as per the statutory limit provided in Section 95 of the M.V. Act, In this case, the learned Tribunal has not properly considered the contention and the entire responsibility of paying compensation has been shifted on the shoulder of the Insurance Company, that is not sustainable. It was prayed that the judgment and Award may be set aside and the appeal be allowed. 10. On the other hand, learned counsel for the respondent supported the judgment and Award passed by the learned Tribunal stating that the appellant has not been able to prove its liability, therefore, the learned Tribunal has rightly held the Insurance Company responsible for the full payment of compensation amount, therefore, no interference is required. The judgment deserves to be maintained and the appeal filed by the Insurance Company deserves to be dismissed. 11.I have considered the rival contention of both the sides and have perused the findings and conclusions drawn thereon and have also gone through the record of the case. 12.Admittedly the accident has taken place on 07.04.1984 and taking into consideration the legal position prevailing at that time with regard to liability of the Insurance Company, I am of the considered view that qua passenger the Insurance Company its liability was upto Rs. 15,000/- but the learned Tribunal while dealing with issue No.1 has not properly considered the legal position and fixed the entire liability on the Insurance Company. From this point of view the judgment and Award passed is not sustainable. It is reasonable to hold that the Insurance Company is responsible upto Rs. 15,000/-, for the rest of the compensation amount only the owner can be made responsible. 13.I have also seen the insurance cover-note as well as the statement of AW-1 in which limited liability of Rs. It is reasonable to hold that the Insurance Company is responsible upto Rs. 15,000/-, for the rest of the compensation amount only the owner can be made responsible. 13.I have also seen the insurance cover-note as well as the statement of AW-1 in which limited liability of Rs. 15,000/- has been taken over by the Insurance Company in case of each passenger, therefore, the Insurance Company cannot be held responsible for paying more than that amount. The owner of the vehicle was not able to establish that he had paid extra premium to cover the total risk in case of passenger. 14.On the basis of the aforesaid discussion, the appeal is partly allowed. The liability of the Insurance Company is fixed upto Rs. 15,000/- in case, the Insurance Company has paid excess amount then the limit of Rs. 15,000/-, then it shall be free to recover the same from the owner of vehicle under the same proceedings and for that they need not require to file separate proceedings. The appellant is further directed to deposit Rs. 15,000/- along with interest at the rate determined by the Tribunal, if not deposited earlier. The rest of the amount will be recoverable from the owner of the bus. 15. Accordingly, with these observations the appeal is partly allowed. No order as to costs.