UNITED INDIA INSURANCE CO LTD Vs. MAHERUNBEN

JUDGEMENT

(1.) PURSUANT to the earlier order dated 27. 11. 2007, learned counsel for the contesting parties have argued for final disposal of the appeal and submitted copies of the relevant documents and depositions. The appellant-Insurance Company has, under the provisions of Section 173 of the Motor Vehicles Act, 1988, challenged award and order dated 23. 03. 2004 of M. A. C. T. (Auxiliary), Bharuch in M. A. C. P. No. 270 of 1992, whereby Rs. 1,92,500/- with interest and cost was ordered to be paid to the claimants as compensation for the death of their breadwinner in a motor accident. There is no dispute about the fact that, on 23. 11. 1991, deceased Yakubbhai was travelling in tempo No. GRV 5663 which turned turtle on national highway No. 8 near Gadkhol Patia. The driver of the tempo was held to be negligent by the Tribunal on the basis of Panchnama Exh. 29 since there was no eye-witness. In view of the F. I. R. recorded on the basis of a telephone massage and the statements recorded thereafter, the Tribunal held the driver of the tempo to be negligent.

(2.) IT was contended by learned counsel for the appellant that there were material contradictions between the F. I. R. recorded by the police and the statements recorded thereafter. He submitted that in all probabilities, the deceased himself was driving the tempo and if he were negligent, the claimants would not be entitled to any compensation. Learned counsel relied upon the complaint Exh. 31 and Panchnamas at Exhs. 29 and 30.

(3.) LEARNED counsel Mr. K. R. Joshi, appearing for the original claimants, relied upon statement of the driver (Exh. 33) according to which, the accident, death of the deceased and driving of the vehicle by himself were admitted and even as that statement was exhibited in evidence before the Tribunal, the insurer had not insisted upon his cross-examination and not led any evidence to the contrary. He submitted that, in fact, learned counsel for the Insurance Company had consciously and actively co-operated in making by the Tribunal of an award of just compensation insofar as its advocate had endorsed the pursis (Exh. 99) by which the claimants had restricted their claim and urged the Court to make an award for a lesser amount.