NEW INDIA ASSURANCE CO. LTD. Vs. DHANESH KUMAR

JUDGEMENT

(1.) M /s. New India Assurance Company has filed this appeal under Section 110 -D of the Motor Vehicles Act (hereinafter called the Act) against the award dated 31st August, 1979 by the motor Accident Claim Tribunal (hereinafter called the Tribunal). In short the facts of the case are that the deceased Dr. Ishwar Dass Kumar on 1st August, 1970 at about 8.00 P.M. at Shyama Prasad Mukherjee Marg was crossing the road from Garden side towards Railway Station. The offending taxi No. DLT -2856 driven rashly, recklessly and negligently by Hans Raj, respondent No. 1, came and hit Dr. Ishwar Dass Kumar with its front. The deceased was removed to hospital in the same taxi by the people present there is unconscious state. Because of that impact Dr. Ishwar Dass Kumar died in the hospital. Sunder lal and Janak Raj are stated to be the eye witnesses. Janak Raj appeared as PW 3. He testified that it was the offending taxi which hit the deceased with the front central part of the taxi. Janak Raj and Sunder Lal removed the deceased to Irwin Hospital in the same taxi. An other eye witness Satish, PW 5, corroborated the testimony of Janak Raj. In the FIR Ex. PW 2/1 the taxi number and the name of the driver had been given by Shri Sunder Lal. It is Janak Raj who had witnessed the accident and this fact find mention in the FIR Ex. PW 2/1. Janak Raj by his testimony proved on record that the taxi driver, respondent No. 1, drove the same in a rash and negligent manner and it is he who caused the accident. The defense taken by the respondent No. 1 that the deceased was already lying on the road when he reached at the spot, did not find favor with the Tribunal. I have also perused the evidence and I see no reason to disagree with the same. From the testimony of Janak Raj, it is fully established that the accident was caused to Dr. Ishwar Dass Kumar, by respondent No. 1 who drove his taxi in a rash and negligent manner. There is no reason to disbelieve the testimony of Janak Raj. The evidence of the respondent has not been corroborated by any other witness, rather the Driver Hans Raj choose not to appear in the witness box, thereforee, adverse inference has to be drawn against him. This shows that his defense is after thought and had been taken in order to deprive the claim of the claimants. The Tribunal rightly came to the conclusion that it was the offending taxi driven by respondent No. 1, which caused the accident.

(2.) SO far as the dependency income is concerned, the Counsel for the appellant has not been able to assail the same. I see no reason to disagree with the observation of the Tribunal in arriving at the dependency income and for applying the multiplier of 10 years.

(3.) I have given my thoughtful consideration to the weighty arguments advanced by both the parties at the Bar. Admittedly Insurance Policy is a contract of insurance. But the point for determination is whether appellant's liability must be held to be limited to Rs. 20,000/ - as per the policy as it existed on the date on which the policy came into being or in accordance with the legal provisions as it stood on the date of the accident, the accident having taken place during the currency of the policy.