ORIENTAL INSURANCE COMPANY LTD Vs. USHA DEVI

JUDGEMENT

(1.) This is an appeal by the Insurance Company against the judgment and award dated February the 19th, 2008 passed by the Motor Accident Claims Tribunal/Additional District Judge, Mathura, allowing the claim petition and awarding a sum of Rs.7,29,500.00 to the claimants. The claimants-respondents, who are also before the Court, say (though they have not filed any cross-objection) that they are entitled to an enhancement of the award on the principle that the Court notwithstanding the absence of a cross-objection, must pass a just award.

(2.) The facts giving rise to this appeal are these: On June the 3rd, 2005 at 10 o'clock in the morning hours, while one Ajay Kumar was standing outside the Refinery Nagar, Mathura waiting to board a bus. A truck (dumper) bearing Registration No. HR 38 L 9611 approached from the Mathura end of the road and hit Ajay Kumar, causing him grievous injuries. In consequence of the injuries, Ajay Kumar died on the spot. It is the claimant's case that the accident happened on account of negligence of the driver of the offending vehicle. It is their case that the driver was moving at a very high speed, driving his vehicle negligently. The deceased had a sweetmeat shop and a restaurant at the Damodarpura Chungi. He would cook food and make all wares at his sweetmeat shop himself. In addition to the daily sale of food and sweets, it is the claimants' case that the deceased's shop-restaurant would cater to the requirements of trainees at the Gram Vikas Training Centre, besides the students and employees of the Veterinary College. The deceased would earn from his business a sum of Rs.10,000.00 per month. The deceased also owned a three-wheeler, which he would ply for hire under his supervision. It yielded him a net income of Rs.5000.00 per month. At the time of his demise, the deceased was 29 years old. The first information report regarding the accident was registered as Crime No. 104 of 2005 with Police Station Refinery, Mathura. It is on these allegations that the claim petition was instituted.

(3.) Opposite party no. 1 to the claim petition, Kalyan Prasad Mangal is respondent no. 7 to this appeal. He is the owner of the offending vehicle. He has filed a written statement, denying the claimants' case. He has stated that the offending vehicle is insured with the Oriental Insurance Company Limited, Mahatma Gandhi Marg, Agra represented by its Regional Manager-I, and, was driven by a driver holding a valid driving licence. In case, any liability is found on account of the accident, the burden would go to the aforesaid Insurance Company, which is hereinafter referred to as 'the Insurers.' Opposite party no. 2 to the claim petition and the appellant here are the Insurers. The Insurers had denied the assertion in the claim petition generally and stated that in the absence of any document to prove the offending vehicle's insurance with them, the Insurers are not liable. It is also pleaded that a copy of the first information report, charge-sheet, site plan and technical report have not been filed along with the claim petition. It is also the Insurers' case that the driver of the offending vehicle did not hold a valid driving licence.