Gheesi Bai and Others vs Manohar Lal and Others

Claimants have come up in appeal u/s 173 of the Motor Vehicles Act against an award, dated 23.4.1999, passed in Claim Case No. 38 of 1996, by learned Member, Motor Accident Claims Tribunal, Rajgarh, whereby their claim petition has been dismissed. Facts in brief are these.

On 26.8.1997 Balu aged 40 years, while travelling in MP-04-L-0789 (Tractor/Trolley) died. It so happened that he fell down from the Trolley while it was moving and one of its bigger wheel crushed him. It is alleged that Trolley was carrying bricks and Balu was travelling along with the goods as labourer. The Trolley was owned by non-applicant No. 2 and driven by non-applicant No. 1 at the relevant time. It was insured with the non-applicant No. 3.

The claim was contested only by Insurance Company inter alia alleging that driver had no licence, that the Trolley was being used for different purpose than the one disclosed, that accident did not occur due to rash and negligent driving of the driver, that all the legal representatives of deceased are not made parties. The claims Tribunal dismissed the application giving rise to filing of this appeal by the claimant.

None for the appellants. Heard Mr. Anil Goyal, learned Counsel for the respondent No. 3. None for the other respondents.

Having perused record of the case and having heard learned Counsel for the Insurance Company, we are of the view that appeal deserves to be allowed resulting in modification of the impugned award and decreeing the claim petition for the amount already determined by the Tribunal.

It is not in dispute that neither the owner, nor the driver entered in witness box to rebut the evidence of claimants. In other words, whatever evidence that the claimants led in support of their claim remained unrebutted insofar as it relates to all material events. This itself is one of the material circumstances to be taken note of while examining the worth of evidence led by the claimants. In our considered opinion, the claiamants were able to discharge the initial burden that lay upon them for proving the factum of accident and the manner in which the accident occurred.

P.W. 1 is the Ghisibai. She is the widow of deceased Balu. She claims to be an eye-witness to the incident. We have no hesitation in accepting this testimony in favour of the claimants. Mere perusal of deposition (P.W. 1) would show that she was an eye witness to the accident who was going along with the tractor/trolley. It is deposed that tractor in which deceased was travelling dashed with another tractor due to which deceased fell down and died. As observed supra, we accept this statement and hold all the respondents i.e., owner/driver/insurance Company liable to pay for the compensation to the claimants for the death of Balu. Since, it was not disputed that the tractor/trolley was insured with the Insurance Company, the liability has to be fastened upon-the company.

Coming to the question of driver''s not having the licence, the same does not detain for holding the issue against the Insurance Company in the light of law laid down by Supreme Court in the case of Swaran Singh 1 (2004) ACC1 (SC) : AIR 2004 SCW 663. In other words, the liability of Insurance Company cannot be avoided after the decision in Swaran Singh''s case. Same is the case so far as the issue regarding use of the vehicle is concerned, carrying the bricks in the vehicle cannot be said to be its misuse for holding breach of policy terms. We, thus, hold that there is nothing to hold that any of the terms of policy was breached at the instance of owner/driver so as to allow the Insurance Company to disown their liability.

The Tribunal has determined the compensation at Rs. 1,15,200/- which is payable to claimants for the death of Balu. In our opinion, no "fault can be found in such determination made by the Tribunal. It is based on proper assessment of whole factual scenario and does not call for any interference. Even otherwise, the same is not impugned by the claimants in this appeal seeking further enhancement. We, thus, uphold the finding on this issue for passing an award for Rs. 1,15,200/-. This sum will carry interest at the rate of 6% p.a. from the date of application till realization. It will be jointly against all the respondents.

Accordingly, and in view of aforesaid discussion, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated supra. The claim petition out of which this appeal arises is thus allowed in part against all the respondents as indicated supra.

No costs.