NEW INDIA ASSURANCE COMPANY LIMITED Vs. MEHUL SURESHBHAI

JUDGEMENT

(1.) Heard learned advocate Ms. Jani for the appellant insurance company; Mr. Tolia, learned advocate for respondents no.1,2 and 5 and Mr. P.V. Nanavati, learned advocate for respondent No.5. By means of this appeal, the appellant - NEW INDIA ASSURANCE CO. LTD has challenged the award made by the Motor Accident Claims Tribunal (Aux.) Surat in Motor Accident Claim Petition No. 577 of 1987 dated 24.9.2001. Under the impugned award, the tribunal has awarded compensation of Rs. 2,00,000.00 with interest thereon at the rate of 9 per cent per annum from the date of the claim till the realization thereof with proportionate costs in favour of the respondents - original claimants. The tribunal has also directed the present appellant to deposit the awarded amount with interest and costs before the tribunal within three months from the date of the award. The tribunal has also declared that the claimants are entitled to receive the aforesaid amount in equal share. Under the impugned award, the tribunal has also directed that out of the total amount which fall in the share of each claimant, 60 per cent with interest and costs be deposited in any nationalized bank in the name of the claimants for a period of five years with a further direction to the bank not to advance any loan, over draft or permit withdrawal of the deposit or to create any encumbrance and/or charge without prior permission of the tribunal. Remaining 40 per cent of the total amount has been ordered to be paid in cash to the claimants by account payee cheque after deducting the amount of court fees, if any. The tribunal has also directed that if the amount is paid to the claimants under section 140 of the Motor Vehicles Act, 1988, same is required to be deducted by the office while making final payment to the claimants.

(2.) Brief facts of the present appeal are to the effect that on 17/03/1987, at about 9.00 o'clock at night on National Highway No.8, opposite Gupta Synthetic Factory within the limits of village Pipodara, the Truck bearing No. M.R.L. 7202 which is of the ownership of original opponent NO.2 was parked on the road obstructing the traffic and the rear light of the truck has not been switched on and there was no guard or other indication to warn the other vehicles and it was lying on the highway obstructing the traffic, at the time, the opponent NO.4 who is the father of the claimants came with his motor car and when this car reached near the place where the truck was parked and as the truck was parked in the negligent manner and as there was no light and from the opposite direction the vehicles were coming and due to dazzling, the car of the original opponent no.4 dashed with the back side of the stationary truck and, therefore, accident has taken place due to negligence on the part of the truck driver. Due to the said accident, the mother of the claimants and the wife of the opponent NO.4 who was the occupant in the car died. It is also averred that the deceased mother Alkaben was aged about 35 years at the time of said accident. According to the claimants, she was doing the household work and was also doing the work of assorting and grading of the diamond and thereby she was earning Rs.18,000.00 per year. Therefore, in the circumstances, the claimants, by filing the aforesaid claim petition, claimed an amount of Rs.2,50,000.00 from the opponents.

(3.) The said claim petition was resisted by the present appellant original opponent no.3 New India Assutrance Co. Ltd. by filing its written statement at Exh.26 wherein it has been contended that the accident has taken place due to rash and negligent driving of the original opponent NO.4. It has been contended that the stationary truck had parked there with proper indication and with rear light on. It has also been contended that that the claim put forward by the claimants is excessive and exorbitant.Except that, there is no other contention raised by the appellant insurance company before the tribunal. The issues were framed by the tribunal at Exh. 33 wherein no such issue has been framed by the tribunal as to whether the truck involved in accident has been insured with the appellant company or not. Before the tribunal, the appellant has raised the only contention that the vehicle bearing No. MRL 7207 is not insured with the appellant company and that the insurance policy was not produced by the claimant or the owner of the vehicle and, therefore, in absence of the policy, the claimants are not entitled to claim any compensation from the appellant insurance company. Before the tribunal, an application was submitted by the appellant wherein it has been prayed to direct the owner of the offending vehicle to produce the insurance policy before the tribunal wherein the owner of the offending vehicle was directed to produce the insurance policy before the tribunal by order dated 17/07/1999. Before the tribunal, vide Mark 82/2, one document has been produced by the RTO Department and vide Exh.61 dated 12/08/1987, one document has been produced by the original claimants. In light of these two documents, the appellant insurance company has raised the contention that looking to the documents Mark 82/2 and the date of accident 17/03/1987, the vehicle in question was not insured with the appellant insurance company on the day of accident.