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2012 DIGILAW 341 (RAJ)

National Insurance Co. Ltd. v. Anita

2012-02-07

NISHA GUPTA

body2012
GUPTA, J.—This appeal has been filed under Section 173 of the Motor Vehicles Act against the award dated 26.7.2008 passed in MAC No. 438/1998. 2. The brief facts of the case are that on 22.11.1998, deceased Om Prakash was driving Jeep No. RJ-14-2C-6875 from Beawar to Ajmer. He was in the employment of respondent No. 7. It was alleged that a truck came at a fast speed and in order to save accident, jeep driver took the jeep on the side due to which he lost his balance and dashed with a tree, as a result of which Om Prakash died. The legal representatives of deceased Om Prakash filed a claim petition and the learned Tribunal awarded a sum of Rs. 7,20,000/- as compensation. 3. Heard learned counsel for the parties and perused the relevant record specially the impugned judgment and award. 4. The contention of the present appellant is that driver of the jeep himself was negligent and hence no compensation should have been awarded. 5. It has been submitted by the counsel for the respondents that the Tribunal has rightly held that it was the truck driver who was negligent. The present appellant has stated in para No. 4 of the written statement that it was the truck driver who was rash and negligent and the jeep driver tried his level best to avoid collusion and he was not negligent. Hence, when the appellant itself has admitted the fact that the truck driver was negligent and deceased Om Prakash has not contributed any negligence, now the appellant cannot blow hot and cold at the same time and further the learned Tribunal has also considered the fact that extra premium for the risk of driver has been charged by the insurance company. Hence, in view of the fact that if the driver, i.e. deceased, was taken to be negligent, then also, the insurance company would be liable to pay compensation. 6. It has also been submitted by the appellant that the deceased was a workman and hence the claim petition should have been filed under the provisions of Workmen's Compensation Act. 7. Hence, in view of the fact that if the driver, i.e. deceased, was taken to be negligent, then also, the insurance company would be liable to pay compensation. 6. It has also been submitted by the appellant that the deceased was a workman and hence the claim petition should have been filed under the provisions of Workmen's Compensation Act. 7. This argument is totally baseless looking at the provisions contained in Section 167 of the Motor Vehicles Act, 1988, where an option has been given to a person entitled to compensation, may file a claim petition under the provisions of the Motor Vehicles Act or Workmen's Compensation Act and the counsel for the respondents has also drawn my attention towards the application filed by the appellant under Order 6 Rule 17 CPC before the Tribunal wherein it has been admitted by the appellant that the provisions of Section 167 Motor Vehicles Act are applicable and hence looking at the above provisions, the claim petition was rightly entertained by the learned Tribunal. 8. Learned counsel for the appellant has submitted that the compensation calculated by the learned Tribunal is also on higher side but nothing has been stated in the memo of appeal and counsel for the respondent has submitted that no application under Section 170 of the Motor Vehicles Act has been filed before the learned Tribunal. Thus, these objections could not be taken in appeal. 9. Looking at the above, this appeal is devoid of any merit and hence the same is hereby dismissed.