UNITED INDIA INSURANCE COMPANY LTD Vs. SARASWATHI

JUDGEMENT

(1.) THIS appeal is against the order passed by the Motor Accident Claims Tribunal (Additional Subordinate Judge), Erode in M. C. O. P. No. 330 of 1984.

(2.) THE averments in the petition are as follows: The deceased Subramanian was proceeding in van T. N. J. 3409 from Coimbatore to Salem on April 26, 1982 at about 2. 30 a. m. The driver of the van drove it in a rash and negligent manner and dashed against the lorry T. D. Q. 9169 near Nasianoor Pallipalayam Road. Subramanian died in the accident. He was then 32 years old. The petitioners are his wife, parents and minor daughter. They have lost the bread-winner of the family and hence they make a claim for 'rs. 2,50,000. The fourth respondent is the driver of the lorry. The fifth respondent is the owner of the same and the sixth respondent is the insurer. The first respondent is the driver of the van belonging to the second respondent under whom the deceased Subramanian was employed. The first respondent remained ex-parte,

(3.) THE second respondent in his counter contends as follows: The accident was not due to the rash and negligent driving of the van by its driver. The accident was only due to the lorry driver. The lorry which was proceeding ahead of the van was suddenly stopped. The first respondent attempted to swerve the van and avoid the accident, but yet the van hit at the lorry. It was on account of the rash and negligent driving of the lorry. The deceased is covered by the Employees' State Insurance Act. A claim has been preferred and it is being processed. The amount will be paid to the claimants in course of time. Since the van has been insured with the third respondent, compensation if any, can be paid only by the third respondent and the petition against the second respondent is liable to be dismissed. The third respondent in their counter have contended as follows: The liability of the insurer is limited. The deceased is a non-fare paying passenger, under the terms of the conditions of the policy and as per the contract, the insurance company is not liable since the deceased is also an employee of the second respondent. The accident was due to the rash and negligent driving of the drivers of both the vehicles. The fifth and the 6th respondent have filed their separate counters disputing their liability.