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Rajasthan High Court · body

2011 DIGILAW 2451 (RAJ)

Nirmala Kumari v. Oriental Insurance Co. Ltd.

2011-11-15

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the claimants against the award of the learned Motor Accident Claims Tribunal dated 29.5.1997 by which the Tribunal although quantified the compensation payable to the claimants but dismissed the claim petition holding that the negligence of the owner of the vehicle was not proved. The claimants filed claim petition on account of death of Rajendra Singh Bhati, driver of truck No.RJO 5114. While he was going from Jhalawar to Bhanpura on 17.2.1991, the front tyre of the truck got burst near place Singhania, due to which the driver lost control over the truck and the truck hit a tree, as a result of which he died. 2. Contention of the learned counsel for the appellants is that the claimant-widow of the deceased, who is appellant No.1 had appeared in the witness box to prove that her husband was employed as a driver with the respondent No.1 Shri Sushil Kumar Tyagi on payment of Rs.1,000 per month. He was driving the vehicle as his employee and that it was a truck cleaner who informed her that accident took place because the front tyre of the truck got burst. Her husband received serious fatal injuries. He was taken to hospital as indoor patient, but he died on 28.2.1991. Documents Ex.1 to 7 were exhibited to prove this fact. One Om Prakash has appeared as an eye witness and has deposed that the accident took place because tyre of the truck got burst near Singhania and the driver lost control over the vehicle, which dashed into a tree. It was a re-trade tyre and the condition of the road was not good, although he stated that the speed of the vehicle was quite reasonable. Learned counsel therefore submits that maintenance of the truck was responsibility of the truck owner and if the tyre was not in good condition or it was a retrade tyre and it has got burst for that reason, it would be deduced therefrom that it was the owner who was negligent in not taking proper care of the truck. The Tribunal has though quantified the compensation, however, has not granted the same. It was argued that in the insurance policy, the premium for the risk of the driver was separately paid and therefore also the compensation has to be paid. 3. The Tribunal has though quantified the compensation, however, has not granted the same. It was argued that in the insurance policy, the premium for the risk of the driver was separately paid and therefore also the compensation has to be paid. 3. Shri Ram Singh Rathore on behalf of Shri S.C. Srivastava, learned counsel for the insurance company has argued that the Tribunal has rightly declined to grant any compensation because the negligence has to be necessarily proved and in this connection the Tribunal has rightly relied on the judgment of Kerala High Court in Oriental Fire and General Insurance Co. & Anr. vs. Smt. P.P. Mishra & Anr.-II-1992 ACC page 321 and two other judgments. It was argued that in so far as payment of amount of Rs.50,000 in terms of Section 140 of the Motor Vehicles Act i.e. paid on the analogy of no fault liability is concenred, it is submitted that except that any further amount of compensation in present case wherein the claim petition was filed under Section 166 would be held payable only if the negligence was proved. The Tribunal has therefore rightly rejected the claim petition. 4. On hearing the learned counsel for the parties and perused the material on record, I find that the Tribunal did not correctly appreciate the evidence on record, which clearly proves that the accident took place because of the poor maintenance of the truck. The tyre of the truck was re-trade and that was not in good condition. The road was also not good. The evidence proved that one of the tyre of the truck was got burst and as a result of which the truck dashed into a tree which led to the death of the driver. The negligence of the owner was proved in the facts that he did not take proper care to maintain the truck and that in the policy of insurance, the risk of the driver was covered and a separate premium on that account was paid. Merely by citing the judgment of Kerala High Court and the other two judgments of Madhya Pradesh High Court, the learned Tribunal could not have declined to make payment of compensation. The findings of the learned Tribunal on that issue is therefore reversed. 5. Merely by citing the judgment of Kerala High Court and the other two judgments of Madhya Pradesh High Court, the learned Tribunal could not have declined to make payment of compensation. The findings of the learned Tribunal on that issue is therefore reversed. 5. The learned Tribunal on issue No.2 has quantified the compensation at Rs.1,80,000/- and therefore the appellant is held to receive that compensation after adjusting the amount already paid to them in terms of Section 140 of the Act. The appellant shall also be entitled to interest @ 7.5% per annum on the differential amount from the date of filing of claim petition. 6. The appeal is accordingly allowed in part. 7. Compliance of the judgment be made within a period three months from the date copy of this judgment is produced before the respondent-insurance company.