Bharti Axa General Insurance Co. Ltd. vs Smt. Preeti

Krishna Murari and Prashai Kumar, JJ.—Heard learned Counsel for the appellant.

This appeal under Section 173 of the Motor Vehicles Act (for short the ''Act) has been filed by the Insurance Company challenging the judgment and award dated 30th April, 2016 passed by Additional District Judge,Court No.1, Etah awarding a sum of Rs. 14,80,500/- along with 7% simple interest as compensation on account of death of one Abhai Kumar in an accident.

Facts are that the claimants filed an application under Section 166 of the Act seeking compensation of Rs. 16,61,000/- along with interest on the allegation that on 20th March, 2014, when Abhai Kumar was going on his motorcycle to kasganj, an accident took place with the offending bus, which was being driven rashly and negligently resulting in his death on spot. The proceedings were contested by the UPSRTC, appellant-insurance company and the owner of the bus respondent No. 6. On an analysis of the evidence brought on record by the parties, the Tribunal returned a finding that the accident was a result of contributory negligence of the deceased himself to the extent of 25% and that of the offending bus was 75%.

Learned Counsel for the appellant has challenged the impugned award mainly on the ground that finding returned by the Tribunal with respect to contributory negligence is against the evidence which was brought on record. The argument of the learned Counsel for the appellant is that a perusal of the testimony of P.W. 1 goes to show that the accident took place due to complete negligence of the deceased ''himself, as such, no compensation ought to have been awarded. In the alternative, it suggested that under any circumstances, the contributory negligence was to the extent of 50% on the part of the motorcyclist, as such, the compensation ought to have been calculated, accordingly.

We have considered the argument advanced by the learned Counsel for the appellant. the Tribunal has returned the aforesaid finding on the oral testimony of P.W. 1, Brijesh Kumar, who was the only eye witness of the accident, who stated in his testimony that accident was caused when the motorcycle was overtaking the truck and dashed with the bus on driver side. A clear finding has been returned by the Tribunal that the bus dashed with the motorcycle from the driver side while he was overtaking the truck. It was not a case ad on collision, where it could be said that it was a contributory negligence to the extent of 50%. Further the evidence on record does not support the fact that the accident was a result of the sole negligence of the motorcyclist.

In the circumstances and, in particular, on an analysis of the oral testimony of the eye witness, we do not find any force in the argument advanced by the learned Counsel for the appellant. In any view of the matter, appellant-insurance company has been given a right to recover the awarded amount from the owner on the ground that the bus was being driven in violation of the terms of the insurance policy as the driver of the offending bus was not having valid driving license.

In view of the above facts and circumstances, there is hardly any scope for interference in the impugned award.

The appeal, accordingly, fails and stands dismissed in limine.