RAM CHANDRA JAISWAL Vs. NATIONAL INSURANCE CO. LTD.

JUDGEMENT

(1.) Heard Sri Pankaj Gupta, learned counsel for the appellant and Sri Satyajit Banerji, learned counsel for the respondent no.1. None is present on behalf of the respondent nos.2 to 7 despite sufficient service.

(2.) This first appeal from order under Sec. 163 of the Motor Vehicles Act 1988 has been filed against judgment and award dtd. 18/7/2013 passed by the Motor Accident Claims Tribunal/ Additional District Judge Court No.9, Lucknow(here-in-after referred as tribunal) in Motor Accident Claim Petition No.188 of 2003(Smt. Ram Rati and others versus Ram Chandra Jaiswal and another), by which the claim petition has been allowed and compensation to the tune of Rs.16,72,690.00alongwith simple interest at the rate of 6% has been awarded with right of recovery to the respondent no.1 from the appellant, who is the owner of the offending vehicle, after payment of the compensation to the claimant-respondents.

(3.) The sole argument advanced by learned counsel for the appellant is that on an application moved by the appellant on 9/4/2008, the written statement filed by the appellant was allowed to be amended and the paragraphs 2,3 and 4 in the additional statements in the written statement were incorporated. In paragraph 4, it has been stated that the empty truck of the appellant was going from Sandila to Lucknow for repair in the work shop. Thereafter, the evidence of the owner and the driver were also adduced to the effect that the empty vehicle was going to Lucknow for repairing in the work shop of Rafiq Garage. As such, the appellant is entitled for benefit of Sec. 66(3)(p) of the Motor Vehicles Act 1988, but the same has not been considered and denied only on the ground that the appellant has not made any amendment in his written statement to this effect, whereas it was made after allowed by the learned tribunal. Therefore the impugned judgment and award dtd. 18/7/2013 to the extent it grants right of recovery to the respondent no.1-Insurance Company from the appellant is not sustainable in the eyes of law and is liable to be set aside.