NEW INDIA ASSURANCE CO LTD Vs. VEENA UPADHYA

JUDGEMENT

(1.) THIS appeal arises out of the judgment and award made by the additional civil judge (senior division) and motor accidents claims tribunal, udupi, whereby m. v. c. No. 579 of 1988 has been allowed in part and a sum of Rs. 9,55,340 with interest at the rate of 12 per cent per annum awarded as compensation for the death of narayan upadhya in a road accident. The appellant insurance company who has been held liable to pay the said amount in full has appealed to this court for reduction of its liability on the ground that the said liability is in terms of the policy issued in favour of the owner of the offending vehicle limited to Rs. 1,50,000 only.

(2.) THE deceased narayan upadhya was working as an assistant manager of the syndicate bank and was posted at uthara hobli branch of the said bank. On 28. 4. 88, he was travelling on a two-wheeler, with his wife and their minor child on the pillion. When the deceased reached a place near kumargodu village, a van bearing registration No. Cng 9564 being driven at a high speed in a rash and negligent manner came from behind and dashed against the scooter. As a result of the impact, the scooter as also the riders fell down causing grievous injuries to the deceased narayan upadhya who succumbed to the same on the spot. The minor child, who too was injured, was removed to the hospital for treatment. In due course two claim petitions came to be filed for payment of compensation. In m. v. c. No. 579 of 1988, filed by the widow and the minor daughter of the deceased, compensation was claimed for the death of upadhya while in m. v. c. No. 581 of 1988, the mother of the injured minor Sri pad claimed compensation for the injuries sustained by the minor. The case of the claimants in both the claim petitions was that the accident had occurred entirely due to rash and negligent driving of the van by its driver entitling claimants to payment of compensation. These claims were opposed by the insurance company with whom the van was insured. The insured of the vehicle, however, remained expane.

(3.) ON the basis of the pleadings before it, the tribunal framed five issues and answered the same in favour of the claimants. It recorded a finding that the accident in question had indeed taken place due to rash and negligent driving of the driver of the offending van. On the question of quantum of compensation payable to the claimants, the tribunal came to the conclusion that the claimants in m. v. c. No. 579 of 1988 were entitled to a sum of Rs. 9,55,340 towards compensation with interest at the rate of 12 per cent per annum on the said amount. In the connected m. v. c. No. 581 of 1988, however, the tribunal awarded a sum of Rs. 5,000 only as compensation with interest at a similar rate. The tribunal also came to the conclusion that the entire amount awarded by it is recoverable from the insurance company with whom the offending vehicle was insured. It repelled the contention urged on behalf of insurance company that its liability was in terms of the policy issued to the insured and the provisions of Secrion 95 (2) (a) of the motor vehicles act, 1939, limited to a sum of Rs. 1,50,000. The tribunal held that since the insurance company had failed to produce a copy of the insurance policy, the insurance company was liable to pay the entire amount of compensation to claimants. The insurance company is aggrieved of the said finding of the tribunal and has assailed the same in the present appeal to the limited extent the tribunal has shifted the entire liability to it.