ORIENTAL INSURANCE COMPANY LTD. Vs. DAYAWATI GUPTA

JUDGEMENT

(1.) Heard, Mrs.Pooja Arora,Advocate holding brief of Sri Subhash Chandra Gulati,learned counsel for the appellant and Sri Priyam Mishra,learned counsel for the claimant-respondents. None appeared on behalf of other respondents, even in the revised list and they had also not appeared on the earlier dates also.

(2.) The instant first appeal from order under Sec. 173 of the Motor Vehicles Act,1988 has been filed against the judgment and award dtd. 6/5/2017 passed by Motor Accidents Claim Tribunal/Additional District Judge,Court No.8, Raebarely in Motor Accident Claim Petition No.163/16 (Smt. Dayawati Gupta and others versus Smt. Shashibala Gupta and Others).

(3.) Learned counsel for the appellant submitted that the impugned judgment and award passed by the tribunal is not sustainable in the eyes of law for the reasons that P.W.2 who is an alleged eye witness, though a member of inquest report has not informed the number of the offending vehicle at the time of inquest, therefore, he cannot be said to be an eye witness and his presence on spot is doubtful and either of the persons who were sitting alongwith the deceased has not been produced as a witness to prove the accident and rash and negligent driving. It has further been submitted that a person sitting in the vehicle of the deceased could have been the best witness to prove the accident and rash and negligent driving in view of Sec. 114(g) of the Evidence Act. Thus the accident cannot be said to have been proved. She further submitted that despite any cogent evidence in regard to the income of the deceased, the income has been determined as Rs.50,000.00, which could not have been done. The application for summoning of the income tax returns of the appellant and providing copies thereof was illegaly rejected by the tribunal, therefore, sufficient opportunity has not been afforded to the appellant in regard to determination of the income of the deceased, whereas the tribunal exercises the power of a civil court for the purpose of taking evidence etc. under Sec. 169(2) of the Motor Vehicles Act 1988, therefore it could have been summoned. He relied on Malarvizhi and others versus United India Insurance Company Limited and Another; 2020 (1) T.A.C. 328 (S.C.), Oriental Insurance Company Limited versus Premlata Shukla and Others; 2007(3) T.A.C. 11 (S.C.), Gopal, Krishnaji Ketkar versus Mahomed Haji Latif and Others; AIR 1968 Supreme Court 1413, Parashuram Pal and Others versus Ram Lakhan and Another passed by a Division Bench of this Court in F.A.F.O. No.956 of 2013 and a Coordinate Bench decision of this Court in the case of Shriram General Insurance Company Limited versus Smt. Hem Lata and Others; 2021 (2) T.A.C. 366(All.)