The New India Assurance Co. Ltd. vs Smt. Jasdei Devi and Others

B.C. Kandpal, J.—Since similar question of fact of law is involved in all these appeals, as such, they are being decided by this common judgment.

A.O. No. 156 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 17.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 21 of 2007.

A.O. No. 155 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 18.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 7 of 2007.

A.O. No. 157 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 11.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 10 of 2007.

A.O. No. 158 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 18.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 5 of 2007.

A.O. No. 159 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 18.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 8 of 2007.

A.O. No. 160 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 18.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 6 of 2007.

A.O. No. 161 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 18.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 9 of 2007.

A.O. No. 174 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 17.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 19 of 2007.

A.O. No. 175 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 11.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 14 of 2007.

A.O. No. 178 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 21.02.2008 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 18 of 2007.

A.O. No. 179 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 17.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 22 of 2007.

A.O. No. 181 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 25.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 13 of 2007.

A.O. No. 182 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 11.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 11 of 2007.

A.O. No. 183 of 2008, u/s 173 of Motor Vehicles Act, 1988, has been preferred by The New India Assurance Co. Ltd. against the judgment and award dated 18.10.2007 passed by M.A.C.T./District Judge, Rudraprayag, in M.A.C. Petition No. 16 of 2007.

Brief facts of the case as narrated in the claim petition are that on 12.3.2007 at 6.30 p.m. deceased was coming to village Kolu from village Ghainghar in Bus No. U.A.13-0632 and when the said bus reached near Nauli bend, it fell into a ditch due to rash and negligent driving of the driver of the Bus, as a result of which deceased died. Thus, the claimants filed their respective claim petitions for award of compensation in lieu of death of deceased in the accident against the opposite parties.

Opposite party No. 1 owner of Bus No. U.A.13/0632 contested the claim petition by filing its written statement. In the additional pleas, it has been stated that driver of bus in question was holding valid driving licence at the time of accident. It has been denied that accident had taken place due to rash and negligent driving of driver of offending vehicle. It has further been stated that on the date of accident offending vehicle was comprehensively insured with opposite party No. 3- The New India Assurance Co. Ltd. and vehicle was having all valid papers. Therefore, the liability to pay the compensation, if any, rests upon the insurance company.

Opposite party No. 3-The New India Assurance Co. Ltd. filed its written statement admitting therein the factum of insurance of offending vehicle. It has also been stated that vehicle in question was being plied in breach of conditions of insurance policy. The claim petition has been filed in collusion with owner of the vehicle and the claimants. It has further been stated that as the driver of vehicle was not having valid driving licence at the time of accident and driver himself is responsible for causing the accident, therefore liability to pay the compensation is of owner of the vehicle.

The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led oral as well as documentary evidence in support of their cases. The learned Tribunal after having considered the material evidence available on record and hearing learned Counsel for the parties decreed the claim petitions and awarded different sums as compensation, in favour of claimants, against The New India Assurance Co. Ltd., vide impugned judgment and award.

Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-The New India Assurance Company Limited has preferred the present appeals before this Court.

Heard Sri T.A. Khan, learned Counsel for appellant-The New India Assurance Co. Ltd., Sri R.P. Nautiyal, learned Counsel for the respondents- claimants and perused the record.

Learned Counsel for the appellant has firstly argued that the vehicle in question was being plied without having a permit for the route on which the accident had taken place. He has submitted that an application under Order 41 Rule 27 C.P.C. has been filed by the appellant before this Court in order to show that the vehicle did not have the permit to ply on the route where the accident took place.

I fail to appreciate the argument advanced by learned Counsel for the appellant firstly on the ground that the appellant-insurance company did not take plea before the Tribunal in its written statement in this regard; secondly the permit for the vehicle must have been issued much prior to the date of the accident, but the insurance company did not care to either take the plea in its written statement or to adduce any evidence in this regard. The insurance company also did not care to get any issue framed before the Tribunal on this point. The Tribunal did not have therefore any occasion to decide this point for want of any pleading or the evidence.

The application under Order 41 Rule 27 C.P.C. moved by the appellant for producing the additional evidence before this Court also cannot be allowed in view of the provision of Order 41 Rule 27 (1) (aa). This provision clearly points out that the party seeking to produce additional evidence has to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. There is no iota of evidence available on record that the insurance company has at any point of time during the course of the trial before the Tribunal exercised due diligence to find out the permit of the vehicle. The evidence rather shows otherwise. The Surveyor was deputed by the insurance company to find out the verification of the particulars with regard to the offending vehicle, but it appears that he did not care to find out such paper which was essential to be produced by the company before the Tribunal.

For want of due diligence on the part of the insurance company the claimants or the owner of the vehicle cannot be permitted to suffer. I am of the view that application under Order 41 Rule 27 C.P.C. moved by the appellant-insurance company at this stage bears no merit and is liable to be rejected.

Accordingly, applications under Order 41 Rule 27 C.P.C. filed by appellant-insurance company in all these appeals, stand dismissed.

Learned Counsel for the appellant has also submitted that amount of compensation awarded by the learned Tribunal is on higher side and same is liable to be reduced by this Court.

I do not find any substance in the argument advanced by learned Counsel for the appellant. The Tribunal has rightly assessed the annual income keeping in view the facts and circumstances of the case. The multiplier selected by the Tribunal in this case keeping in view of the age of the deceased also cannot be found fault with. The amount awarded by the Tribunal under the heads of funeral expenses and loss of love and affection also appears to be justified and does not require any interference. I do not find any infirmity in the finding recorded by the Tribunal while calculating the amount of compensation and the same is hereby affirmed.

No other point has been pressed by learned Counsel for the appellant.

For the reasons stated above, appeals lack merit and are liable to be dismissed.

Accordingly, appeals are dismissed. The impugned judgments and awards passed by the Tribunal are hereby confirmed.

The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned.

Let a copy of this judgment be placed in the files of A.O. Nos. 155/2008, 157/2008, 158/2008, 159/2008, 160/2008, 161/2008, 174/2008, 175/2008, 178/2008, 179/2008, 181/2008, 182/2008 and 183/2008.