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2019 DIGILAW 453 (ALL)

Oriental Insurance Co. Ltd. Thru Sr. Div. Manager v. Hausla Prasad

2019-02-20

JASPREET SINGH

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ORDER : Jaspreet Singh, J. 1. Heard Shri Anil Srivastava, learned counsel for the appellant and Shri R.U. Pandey, learned counsel appearing for the claimants-respondents No.1 and 2. None appeared on behalf of the respondents No.3 and 4 and accordingly, the appeal has been heard ex-parte against them. 2. The appellant Insurance Company has challenged the award dated 06.01.2005 passed in M.A.C.P. No.85/1998, wherein the Tribunal has awarded a sum of Rs.1,82,000/-along with 6% interest in favour of the claimants on account of death of their son Photo. 3. The ground of challenge by the learned counsel for the appellant is that in respect of the same incident, two FIRs were lodged wherein two separate tractor numbers were mentioned, which is said to be involved in the accident. Moreover, the names of the drivers of the tractor mentioned in both the FIRs, was also different. It is urged that the Tribunal without looking into the material on record has merely relied upon the statement of the owner Mohd. Yasin that it was the Tractor No.UP-44-A-9784, which was involved in the accident and that it was being driven by his driver Kadir Khan @ Kabir. It has further been submitted that initially the FIR was against Tractor No.UP-44-A-9667 and it was stated that it was being driven by Mohd. Aziz Khan, who was handicapped and, therefore, neither the aforesaid tractor No.UP-44-A-9667 was ever insured nor the alleged driver could have been driving, therefore, this discrepancy has escaped the attention of the Tribunal. 4. On the other hand, learned counsel for the claimants has taken the Court through the record to indicate that the owner had filed his written statement wherein he had informed that his Tractor was UP-44-A-9784 and the same was driven by his driver Mohd. Kadir Khan @ Kabir, who had a valid driving licence and also the tractor in question was duly insured with the appellant Insurance Company. The necessary documents were also submitted before the Tribunal. 5. After giving consideration to the submissions raised by the learned counsel for the respective parties and upon perusal of the record, it indicates that so far as the incident is concerned, it is not disputed that on 12.04.1998 the deceased Photo sustained injuries and died on account of an accident. The necessary documents were also submitted before the Tribunal. 5. After giving consideration to the submissions raised by the learned counsel for the respective parties and upon perusal of the record, it indicates that so far as the incident is concerned, it is not disputed that on 12.04.1998 the deceased Photo sustained injuries and died on account of an accident. A case was also registered in the police station concerned and from the documentary evidence in the shape of post-mortem report, it was clearly established that the death had occurred on account of an accident. 6. PW-2 Prem Lal was examined as an eye witness, who had deposed that the accident took place from the Tractor No.UP-44-A-9784. Since the incident is not disputed and moreover the owner of the Tractor also by filing his written statement made the aforesaid statement regarding the Tractor No.UP-44-A-9784 being involved and he had given the name of his driver along with the driving licence, a copy of the driving licence and the insurance policy, there is no contradictory material to indicate that the aforesaid statements are not correct or could not be believed. 7. On the other hand, there was no evidence which was led by the Insurance Company to substantiate its pleadings and, therefore, this Court finds that the Tribunal has correctly formed an opinion on the basis of oral and documentary evidence and, therefore, there is no error found in the findings, which are based on evidence. 8. In view of above, there is no perversity in the impugned award dated 06.01.2005, which is just and proper. Accordingly, the award dated 06.01.2005 is affirmed and the appeal being devoid of merits is dismissed. 9. The amount deposited by the appellant before this Court shall be remitted to the Tribunal concerned within two weeks to be released in favour of the claimants. The remaining amount of compensation with upto date interest shall also be deposited by the appellant before the Tribunal concerned within a period of six weeks from today. 10. The office is directed to remit the lower court record within two weeks from today. There is no order as to costs.