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2010 DIGILAW 1535 (ALL)

J. K. Agarwal v. Uma Devi

2010-05-11

DEVI PRASAD SINGH, SATISH CHANDRA

body2010
JUDGMENT Dr. Satish Chandra, J.—This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and order dated 10.11.1989 passed by Vth Additional District Judge, Barabanki in Motor Accident Claim Petition No. 12 of 1982. 2. The brief facts of the case are that the deceased Aqbal Bahadur Singh was traveling in a Metador No. U.T.I.-6708 from Barabanki to Faizabad. When he reached near Kuda Saadatpur on Faizabad Road (Police Station-Rudauli) had collided with a Truck No. U.R.K. 3761. The said truck was towing another Truck No. UP-X 3448. In the accident, the deceased along with two other persons namely the driver and cleaner of the Metador had died on the spot. The Truck No. U.R.K. 3761 is owned by the petitioner. The same was insured from M/s. Oriental Fire and General Insurance Company Limited, Kanpur. 3. The Tribunal in its impugned order observed that the driver of the Truck did not appear before the Tribunal to give his evidence and it is not known whether he was having a valid driving licence or not. The towing of another Truck is violative of the terms and conditions of the Insurance Policy. So, the liability of the accident was fixed on the Truck owner for Rs. 2,44,054 along with interest from the date of filing of the claim petition. 4. With this back ground, learned counsel for the appellant submits that the truck in question belongs to the appellant. It was towing another truck without any charges. He has not disputed the facts of the case but simply submits that the liability lies with the insurance company. He also submits that nowhere, it was proved that the accident caused on account of rash and negligent driving of the driver. According to him, the truck was driven by the driver having a valid driving licence. Hence, award can only be passed against the insurance company and not against the appellant because the vehicle in question was insured with unlimited liability. He also submits that there was no evidence on record to show that the truck, which was towing by another truck, was being carried on hire. Hence, the finding to this effect by the learned Tribunal is based on the basis of evidence not available on record and only for this reason, the impugned order is liable to be set aside. Hence, the finding to this effect by the learned Tribunal is based on the basis of evidence not available on record and only for this reason, the impugned order is liable to be set aside. He further submits that the age of the deceased was mentioned as 42 years. Lastly, he submits that the award is on higher and the same needs to be set aside. 5. On the other hand, learned counsel for the opposite parties have justified the impugned order of the Tribunal. 6. We have heard both the parties at length and gone through the material available on record. 7. From the record, it appears that the deceased was travelling in a Metador No. U.T.I. 6708, which collided with Truck No. U.R.K. 3761. The deceased died on the spot along with two other persons who were cleaner and driver of the Metador. It also appears from the record that Metador was on the left side but the truck in question was in the mid of the road at Behsar crossing. It is surprising that Mohd. Hasan, the driver of the Truck No. U.R.K. 3761, was never appeared before the Tribunal to give his evidence nor his driving licence was produced. 8. In the circumstances, the Tribunal has rightly presumed that the driver of the truck was not holding a valid driving licence on the date of accident. It is also evident that the truck in question was insured with M/s. Oriental Fire and General Insurance Company Limited, Kanpur but as per the insurance policy, i.e., agreement between the insurance company and the policy holder, nowhere it was alleged that the truck will be allowed to tow another truck may be for hire or without hire. It is violation of the terms and conditions of the agreement between the insurance company and the truck owner. 9. By looking the age and other circumstances, the Tribunal has awarded a total compensation of Rs. 2,44,053.50, which appears reasonable in the peculiar facts and circumstances of the case. The impugned order passed by the Tribunal is hereby sustained along with the reasons mentioned therein. 10. In view of the above, the appeal is dismissed. No cost.