RAJ KUMAR TOMAR Vs. VINESH KUMAR JAIN

JUDGEMENT

(1.) BY way of the present appeal, the appellant seeks to challenge the impugned award dated 31.7.2004 passed by the court of Ms. Bimla Kumari, Judge MACT, Shahdara, Delhi. Brief facts of the case relevant for deciding the present appeal are as under:

(2.) THAT the Respondent Nos. 1 to 3 filed a claim petition before the Motor Accident Claims Tribunal under Section 166, Motor Vehicles Act, 1988, against appellant owner and respondent no. 4 insurer of the truck bearing registration no. UP 83 B 9360. On 15/7/2001, on the fateful day the deceased Shri Virender Kumar Jain was traveling in Tata Safari bearing registration no. UP 80 W 0377, when the truck bearing registration no. UP 83 B 9360, driven by its driver at a very high speed and in a rash and negligent manner collided with the Tata Safari, causing grievous injuries to the victim Sh. Virender Kumar Jain due to which he was taken to various hospitals for treatment and he succumbed to his injuries while being treated at Sir Ganga Ram Hospital. Claim petitions were filed by the claimants which led to the passing of an award dated 31.7.2004 Aggrieved with the said award the present appeal has been preferred by the appellant.

(3.) MR . P.K. Seth, Counsel appearing for the appellant has mainly raised three contentions so as to assail the findings of the Tribunal. The first contention raised by the counsel is that the Tribunal could not have ignored the fact that the claimants failed to implead the driver, owner and insurer of the TATA Safari bearing registration No. UP-80-W-0377 in which the victim Sh. Virender Kumar Jain was travelling, despite a specific plea to this effect was taken by the appellant insurance company in their written statement attributing rash and negligent driving on the part of the driver of the said TATA Safari. The second contention raised by the counsel for the appellant is that even the claimants failed to implead the driver of the truck bearing No. UP-83B-9360 which vehicle was found to be the offending vehicle. The submission of the counsel for the appellant is that and no tortuous liability could have been fastened upon the owner or the insurer of the offending vehicle without impleadment of the driver of the offending vehicle. Counsel, thus, contended that the petition filed by the claimants in the absence of the driver of the offending vehicle was bad for non-joinder of necessary parties and the Tribunal fell in grave error by ignoring the said vital objection raised by the appellant and had illegally proceeded with the case and ultimately passed the impugned award. The third contention raised by the counsel for the appellant is that the Tribunal has wrongly assessed the monthly income of the deceased at Rs. 20,300/- although the income tax return proved on record as Ex. PW2/C contained the signatures of the deceased who had died prior to filing of the same. Counsel thus contended that the claimants have played fraud in placing reliance on such an income tax return carrying false signatures of the deceased. Counsel for the appellant raised yet another contention that the Tribunal has illegally ignored deposition of R2W1 who was a Chartered Accountant and gave his opinion after examining the income tax returns of the deceased pertaining to the years 1998- 99, 1999-2000 and 2000- 2001 filed on record. Counsel thus contended that the income of the deceased as stated by the Chartered Accountant should have been given due weightage by the Tribunal instead of believing the said manipulated income tax return filed by the claimants.