The Oriental Insurance Company Limited vs Chandra Prakash and Ajit Singh

Rajesh Tandon, J.—Heard Sri Pankaj Purohit, counsel for the appellant and Sri Raman Kumar Shah, counsel for the respondent No. 1. This is an appeal filed by the Insurer.

By the present A.O. filed u/s 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 18.7.2006 passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal in Motor Accident Claim Case No. 78 of 1999 Chandra Prakash v. Ajit Singh and Anr.

Briefly stated, a claim petition was filed by the claimant-respondent No. 1 being Motor Accident Claim Case No. 78 of 1999 Chandra Prakash v. Ajit Singh and Anr. claiming a sum of Rs. 16,10,000/- towards compensation along with simple interest @ 18% per annum.

According to the claimant, he was 45 years of age at the time of accident and employed as a Driver in Uttar Pradesh State Road Transport Corporation and was getting a sum of Rs. 4500/- per month. On 27.9.98, at about 9.45 a.m. when the claimant was going to Rishikesh from Jhandichaur by driving Bus No. U.M.S. 8365 (hereinafter referred to as the Bus in question), all of a sudden near Gandikhata Police Check Post, a truck being Truck No D.E.L. 4995, which was coming from the opposite direction and being driven rashly and negligently by its driver, dashed the Bus in question. In this accident, the wrist bone of the claimant got broken and he is now unable to make his fist close. His right leg received multifractures and a rod was put in the leg. The claimant has stated that he has become permanently disabled in driving and has been declared ''unfit for the same work by the Employer. The claimant was admitted in the District Hospital Haridwar, where he remained admitted up to 17.10.1998 from the date of accident. The claimant has submitted that up to now, he has spent a sum of Rs. 2,00,000/-and the expenses of Rs. 1,00,000/- is expected.

Ajit Singh - owner of the truck No D.E.L. 4995 has admitted the occurrence and has further submitted that the truck in question was insured with the Oriental Insurance Company Limited at the time of accident with Policy No. 31/321009/97/98/0051. Further in paragraph 25 of the Additional Plea, it has been submitted that at the time of accident, the truck in question was being driven in a moderate speed and not in a rash and negligent manner. It has been stated that the owner of the truck in question is not liable to pay any compensation.

Insurer has submitted in the written statement that the vehicle No. D.E.L/4995 was not insured with it with limited liability on the date of alleged accident. In the additional pleas, it has been stated that the age, income, profession, employment, circumstances of the accident, loss of income and amount of compensation as claimed by the claimant are wrong. The Insurer has further submitted that the claim petition is bad for the principle of non joinder of necessary parties as driver of the vehicle and U.P.S.R.T.C. are necessary party to the suit and have not been made so. Further it has been stated that the amount of compensation is highly exaggerated, imaginary and without footing. It has also been stated that the claimant is only entitled to get the amount of compensation from the owner of the truck.

On the pleadings of the parties, the claims tribunal has framed following issues:

�1� D;k fnukad 27-9-1998 dks le; 9-45 cts lqcg xkSM+[kkrk iqfyl psd iksLV ds ikl tc ;kph cl la[;k ;w0,e0,l0 8365 ysdj >.M+h pkSM+ ls _f"kds"k tk jgk Fkk rks pkyd V�d la[;k Mh0bZ0,y0 4995 us rsth o ykijokgh ls pykdj nq?kZVuk dkfjr dh ftlls ;kph dks pksVsa vkbZ \\

�2� D;k nq?kZVuk ds fnukad dks okgu la[;k Mh0bZ0,y0 chfer Fkk \\

�3� D;k ;kfpdk eas vko;''d i{kdkj u cuk;s tkus dk nks"k gS \\

�4� D;k okgu pkyd ds ikl oS/k ,oa izHkkoh ykblsUl ugh Fkk \\

�5� D;k ;kph dksbZ izfrdj ikus dk vf/kdkjh gS \\ ;fn gkWa rks] fdruk o fdlds fo:) \\

On behalf of the claimant, he himself has been examined as A.P.W. 1. Towards documentary evidence, the claimant has filed per List 7Ga 17 Papers and per list 58Ga six papers.

Owner of the truck in question has filed photocopy of the cover note of the Insurance Policy and photocopy of the driving licence of the driver of the truck in question. On behalf of the Insurer, neither documentary nor oral evidence has been filed.

While deciding the Issue No. 1 as to whether on 28.9.1998 at about 9.45 a.m. near Gaunkhata Police Check Post, when the claimant was going to Rishikesh from Jhandichaur by driving Bus No. U.M.S. 8365, due to rash and negligent driving of the driver of Truck No. D.E.L. 4995 an accident took place, in which the claimant received grievous injuries, the claims tribunal has relied upon the statement on oath of the claimant as well as copy of the first information report Paper No. 7Ga/i6, where it has been stated that at the time of accident, the driver of the truck No. D.E.L. 4995 was driving the Truck rashly and negligently due to which the claimant received grievous injuries. Relying upon the aforesaid documents, the claims tribunal has recorded a finding that due to rash and negligent driving of the Truck No. D.E.L 4995 the accident took place on 28.9.1998. This issue was decided in favour of the claimant.

While deciding the Issues No. 2 and 4 as to whether the Vehicle No. D.E.L was insured and as to whether the driver of the truck in question was holding valid driving licence, claims tribunal has relied upon the Original Insurance Policy Paper No. 30 Ga and the copy of the driving licence. Insurance Policy shows that the Truck No. 4995 was validly insured for the period from 5.10.1997 to 4.10.1998 and the accident took place on 27.9.1998. Copy of the driving licence shows that the same was valid for the period from 15.4.1997 to 14.4.2002 for driving all type of vehicles. Relying upon the aforesaid documents, the Issues No. 2 and 4 have been decided in favour of the claimant.

I find no infirmity in the aforesaid findings and the same deserves to be confirmed.

While deciding the Issue No. 3 as to whether the claim petition is bad for non-joinder of the necessary parties, the claims tribunal has recorded a finding that the claimant may file the claim petition either u/s 166 of the Motor Vehicles Act or under the provisions of the Workmen Compensation Act for getting compensation. Thus, this issue has been decided accordingly.

I do not find any error or illegality in the aforesaid findings and the same deserve to be confirmed.

While deciding the Issue No. 5 as to whether the claimant is entitled to get any compensation, claims tribunal has taken into consideration the Bills of treatment and medicines to the extent of Rs. 21,795 and the Bill of Conveyance. The claims tribunal has awarded a sum of Rs. 18,795/- for treatment, medicines and conveyance and further a sum of Rs. 25,000/- for physical and mental agony relying that there was 40% disability. Thus, the claims tribunal has awarded a total sum of Rs. 43,795/-towards compensation along with simple interest @ 9% per annum.

I find no illegality or infirmity in the aforesaid finding and the same deserves to be confirmed.

Counsel for the appellant has submitted that the truck in question was not insured with the Insurance Company at the time of the accident and no policy was ever issued by the kashpur Branch and the policy which was annexed was a fake one.

However, if the truck in question was not insured with the Insurance Company at the relevant time, the Insurer shall have recoverable rights to recover the amount of compensation from the owner of the truck in question.

So far as the claim is concerned, the claim has been made against the Truck No. D.E.L. 4995, therefore, liberty is given to the appellant to avail appropriate remedy available to him from the department, where the claimant was employed on account of the permanent disability. So far as interest part is concerned, the same is modified to the extent of 7.5% per annum instead of 9% per annum.

Subject to the aforesaid, A.O. lacks merit and is dismissed. No order as to costs.