ORIENTAL INSURANCE COMPANY LIMITED Vs. KEMPAMANI

JUDGEMENT

(1.) ORIENTAL Insurance Co. Ltd. ,which is the respondent No. 1 in M. V. C. No. 376 of 1999 on the file of the court of the Motor Accidents Claims Tribunal and Additional Judge, Court of Small Causes,mayo Hall Unit, Bangalore, (SCCH 20), (for short the Tribunal), being aggrieved by the judgment and award of the Tribunal dated 28. 3. 2002, has preferred this appeal under section 173 (1) of Motor Vehicles Act, 1988 (for short the Act ).

(2.) THE facts of the case, in brief, are:the respondent Nos. 1 and 2 herein,namely, Kempamani and Jayanthkumar are the dependants of late C. M. Basavaraju (deceased ). The deceased was working at a pub on Brigade Road, Bangalore and he died in a motor accident which took place on Varthur Main Road in front of Sunrise Bar and Restaurant, at about 11 p. m. , while he was proceeding to his house on a Hero Puch (a two-wheeler) when a stray cow rushed into the middle of the road from the left side and dashed against the Hero Puch driven by the deceased. Consequently, the deceased lost balance and fell down. The deceased was shifted to Manipal Hospital,where he succumbed to injuries and was declared dead. The age of the deceased was said to be about 38 years and he was earning Rs. 1,746 per month on the date of accident. The respondent Nos. 1 and 2 filed a claim petition under section 166 (1) of the Act claiming total compensation of Rs. 5,00,000 with interest.

(3.) THE petition was opposed by appellant insurance company by filing statement of objections, inter alia, contending that the deceased was the owner-cum-insured travelling on the vehicle and that he was not a third party; that he was a party to the contract of insurance whose risk is not required to be covered under the Act and in fact his risk was not covered under the policy. It was also contended that there was a clause in the policy which excluded the liability of the insurer to pay compensation for death and injury of the insured.