NEW INDIA ASSURANCE CO LTD Vs. RAM KALI

JUDGEMENT

(1.) THIS appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (in short the Act) against the judgment and Award, dated 10 -10 -2002, passed in M.A.C.T. Petition No. 174 of 2001, Smt. Ram Kali and another Vs. Sri Suresh Chandra Agarwal and others, by the Motor Accident Claims Tribunal/Addl. District Judge, F.T.C., Haldwani, Nainital (hereinafter referred to as the Tribunal), whereby the learned Tribunal has awarded a sum of Rs. 3,61,000/ - along with simple interest @ 9% per annum and directed in favour of the claimants -respondent nos. 1 and 2 against the a. P. No.3 -appellant. Aggrieved, the Insurance Company -O.P. NO.3 has come up in appeal with a prayer to set aside the impugned judgment and award mainly on the ground that the cover note of the Insurance Policy was not in existence at the time of accident and quantum of compensation and it has been contended the findings of the learned Tribunal are not based on evidence on record.

(2.) WE have heard learned counsel for the appellant, Mr. T.A. Khan as well as learned counsel for the claimant -respondent no. 1 to 3, Mr. Zafar Ulla Siddiqui, and have carefully gone through the entire material on record including the impugned judgment and award.

(3.) BRIEF facts of the case are that Shiv Babu (the deceased) sustained grievous injuries being hit by Car No. D.H.A. -5050 at 7 p.m. on 6 -11 -2001 as a result of rash and negligent driving by its driver, on the road near Abdulla Building, Haldwani. He was rushed to Base Hospit.al, Haldwani, where he succumbed to his injuries in the mid night the same day. His dependents/legal heirs have filed claim petition before the Tribunal. The owner and insurer of the said vehicle have been arrayed as O.P. Nos. 1 and 2 to the claim petition. Both the O.Ps. contested the claim petition and filed separate written statement. O.P. No.1 along with his written statement also filed carbon copy of insurance certificate no. 144822 (paper no. 13 -C/4) showing that the car was insured from 06 -11 -2001 till the mid night of 05 -11 -2002. It has been asserted that the accident was the result of own negligence of the deceased. The O.P. was holding a valid driving licence No. N -3114K 1989, which is valid upto 9 -8 -2004. The vehicle is duly insured, therefore, Insurance Company is liable for compensation. The Insurance Company also filed written statement and pleaded that it was not informed about the accident; that the owner was not holding necessary valid papers like permit, fitness, driving licence, etc. The vehicle was being driven in breach of policy conditions rashly and negligently. Plea of collusion was also taken by the appellant and it has been alleged that the claimants have to satisfy the Tribunal regarding age, income, dependency of the deceased. Lastly, it has been pleaded by amendment that the insurance policy in question had not come into force at the time of the accident.