ORIENTAL INSURANCE COMPANY LTD Vs. SUNITA TIWARI

JUDGEMENT

(1.) Heard, Mrs. Pooja Arora, Advocate holding brief of Shri Subhash Chandra Gulati, learned counsel for the appellant and Shri Satish Kumar Srivastava, learned counsel for the claimant-respondents no.1 to 3. None appeared on behalf of remaining respondents despite sufficient service.

(2.) This First Appeal From Order under Sec. 173 of the Motor Vehicles Act, 1988 (hereinafter referred as "M.V. Act") has been filed assailing the judgment and award dtd. 11/7/2019 passed in Claim Petition No. 752 of 2012, Smt. Sunita Tiwari and others vs. Ahmedabad Bengal Roadways Private Limited and others, by means of which the claim petition has been partly allowed.

(3.) Learned counsel for the appellant submits that despite specific plea taken by the appellant-Insurance Company in the written statement in regard to the rash and negligent driving of the driver of the Maruti 800 Car, in which the deceased was traveling, no issue in this regard was framed by the learned tribunal. She further submits that the driver of the truck had died during pendency of the claim petition but he was not substituted and now the owner has also expired. She further submits that the driver of Maruti 800 Car, who appeared as P.W. 2, admitted in his evidence that the truck had collided on the right side of the Car and if the truck had collided on the right side of the car, the driver, who was sitting on the driver seat on the right side of the car, was saved but the person sitting next to him died, which is not possible but the learned tribunal failed to consider it. She further submits that Bhupendra Singh, who was in the car at the time of accident, has not been produced in evidence, therefore, once the material witness has not been produced to prove the accident and withheld, the claim petition could not have been allowed.