NATIONAL INSURANCE CO LTD Vs. RAJ KUMARI

JUDGEMENT

(1.) The insurer is the appellant. An order was passed against the appellant for a sum of Rs. 1,84,800. The claimant was the mother of the deceased. The Motor Accidents Claims Tribunal found that the driver of the bus belonging to the respondent No. 2 was negligent. The award was passed only against the insurer and not against respondent No. 2 insured.

(2.) Mr. R. Yashod Vardhan, the learned counsel appearing for the appellant would first submit that the event was not an accident, but an act of God because the accident occurred on account of the tree that fell down on the road and not because of the negligence of the driver. His next submission was the quantum fixed was excessive since the court below failed to see the claimant was the mother and, therefore, a lower multiplier ought to have been applied. He also submitted that if this court came to the conclusion that the insurer cannot raise any ground regarding quantum, the error in the award shall be rectified by invoking Order 41, rule 33, Civil Procedure Code in favour of the respondent No. 2, the insured though no appeal had been preferred by the respondent No. 2 corporation. He relied on Managing Director, Marudhu Pandiyar Trans. Corpn. v. MA. Prakasam, (1997) 3 LW 734; Delhi Electric Supply Undertaking v. Basanti Devi, 1999 CCJ 1465 (SC) and Managing Director, Annai Sathiya Trans. Corpn. Ltd. v. Janardhanam, 2002 ACJ 1133 (SC). The learned counsel for the respondents, however, would submit that it was not open to the insurance company to raise these grounds.

(3.) The finding of fact of the Tribunal is that a tree was lying on the road when the driver of the bus belonging to the respondent No. 2 drove the vehicle rashly and negligently and dashed against the tree that was lying across the road. In these circumstances, the finding regarding negligence cannot be set aside. As regards the multiplier, it is no doubt true that when contribution by the victims to appellants-claimants is assessed, the court should take into account, the age of the appellants and whether they would have received the same contribution after his marriage. A Division Bench of this court in Managing Director, Marudhu Pandiyar Trans. Corpn. v. M.A. Prakasam, (1997) 3 LW 734, had held that it is the age of the appellants which is relevant for deciding on the multiplier. So, the Tribunal ought not to have fixed the multiplier purely on the basis of the age of the deceased.