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2013 DIGILAW 82 (UTT)

NATIONAL INSURANCE COMPANY LTD. v. MUSTAFA

2013-03-01

B.S.Verma

body2013
JUDGMENT Hon’ble B.S.Verma, J. (Oral) This appeal, preferred u/s 173 of the Motor Vehicles Act, 1988, is directed against the judgment and award dated 20.07.2011 passed by the Motor Accident Claims Tribunal/ADJ/FTC-5, Dehradun in MAC Case No.248 of 2007, Mustafa and another vs. National Insurance Company Ltd. & others, whereby the claim petition has been allowed and the insurance company has been directed to pay Rs.2,24,500/- as compensation along with interest @ 6% to the claimants. 2. Brief facts of the case are that on 6.10.2007 Anjum (now deceased) was going in Utility No. UP 11 T-0116 with the vegetables from Dehradun to Vikasnagar. At about 08:00 AM near Lakhadwad Village, the aforesaid vehicle fell into a ditch due to rash and negligent driving of its driver. The deceased and others sustained injuries due to which deceased Anjum died on the spot. According to the claimants, the deceased was 27 years of age. He used to do work of supplying vegetables and was getting 2 Rs.8,000/- per month. The claimants filed claim petition for a sum of Rs.12,70,000/-. 3. Before the Tribunal, the claim petition was contested by the Insurance Company as well as by the owner-cum-driver of the vehicle. Insurance company filed the written statement and denied the averments made in the petition. It has been pleaded by the Insurance Company that the driver of the vehicle was not possessing valid driving licence and that the vehicle was being driven against the insurance policies, therefore, the insurance company cannot be held liable to pay the compensation. 4. Opposite party no.2 also filed written statement paper no.25B and denied most of the averments made in the petition. He also denied the income of the deceased to be Rs.8,000/- per month. 5. The learned tribunal, on the basis of pleadings of parties, framed as many as five issues for consideration as follows:- i) Whether the accident had occurred on 6.10.2007 at about 8:00 AM near Behad Village Lehri Khat Lakhwad P.S. Kalsi, Vikasnagar Badkot, National Highway due to rash and negligent driving by the driver of vehicle no. UP 11 T – 0116 due to which the deceased had died on the spot? ii) Whether the deceased was travelling as a paid passenger in the vehicle? iii) Whether the vehicle no.UP 11 T–0116 was being driven by its driver without valid permit, if so, its effect? UP 11 T – 0116 due to which the deceased had died on the spot? ii) Whether the deceased was travelling as a paid passenger in the vehicle? iii) Whether the vehicle no.UP 11 T–0116 was being driven by its driver without valid permit, if so, its effect? iv) Whether at the time of accident, the driver of utility no.UP 11 T –0116 was not having valid driving license, if so, its effect? v) Whether the claimants are entitled for any compensation, if so, to what extent? 6. Both the parties adduced evidence in support of their cases. The learned tribunal after hearing learned counsel for the parties and considering the entire evidence on record, allowed the claim petition for a sum of Rs.2,24,500/- as compensation against the National Insurance Company Ltd. along with interest @ 6% per annum from the date of filing the claim petition till the date of actual payment. 7. Feeling aggrieved by the impugned award passed by the Tribunal, the Insurance Company has assailed the impugned judgment and award on the issue no.2 only. Other ground taken by the appellant is that the deceased was not the owner of goods therefore the Insurance Company is protected under provision of section 149(2) of Motor Vehicles Act. 8. I have heard learned counsel for the parties and perused the impugned award. 9. Learned counsel for the appellant has contended that the vehicle was loaded with Devdaar Sleepers at the time of accident and no vegetable was recovered from the spot. 10. The learned Tribunal on the basis of statement made by the owner of the vehicle has observed that the deceased was travelling in the vehicle and the vegetables and other goods was being carried in the vehicle in question and that the deceased was a paid passenger. It has also been held that the vehicle had fallen into a 300 Metre ditch and in these conditions it is natural that the vegetable might have scattered here and there. No other evidence has been filed in rebuttal to rebut this fact by the Insurance Company. The Insurance Company could have examined other passengers who were travelling with the deceased to the effect that the deceased was not travelling with the goods. In view of the amendment made in section 147 in Motor Vehicles Act, 1994, the owner of goods is also entitled for compensation. The Insurance Company could have examined other passengers who were travelling with the deceased to the effect that the deceased was not travelling with the goods. In view of the amendment made in section 147 in Motor Vehicles Act, 1994, the owner of goods is also entitled for compensation. He will be treated third party and therefore the learned Tribunal has held that he was a paid passenger and has fastened the liability upon the Insurance Company. 11. No other grounds have been pressed. 12. For the reasons recorded above, the appeal lacks merit and is liable to be dismissed. 13. The appeal is accordingly dismissed. Impugned judgment and award dated 20.07.2011 passed by the Motor Accident Claims Tribunal/ADJ/FTC-5, Dehradun in MAC Case No.248 of 2007, Mustafa and another vs. National Insurance Company Ltd. & others, is affirmed. The claimants are major and they are in need of money, therefore, it is directed that if the application is moved before the tribunal by the claimants for the release of amount, entire awarded amount shall be released in their favour including the amount kept in the F.D.R. 14. Let the lower court record be sent back to the tribunal concerned.