UNITED INDIA INSURANCE CO. LTD Vs. SUMAN DUBEY

JUDGEMENT

(1.) HEARD Mr. Saurabh Srivastava, learned Counsel for the appellant and Mr. R.K. Porwal, learned Counsel for the respondent Nos. 1 to 5.

(2.) THE appeal is directed against the award dated 1.12.2006 passed by MACT/Special Judge (SC and ST), Etawah awarding a sum of Rs. 10,72,096 to the claimant -respondents, as a result of death of Mr. Hari Shankar Dubey, deceased. The learned Counsel for the appellant vehemently contended that it was a case of contributory negligence as the accident was head -on collision and, therefore, the liability was of both the Insurance Companies namely the appellant and the respondent No. 8, but the learned Tribunal has erred in law in not considering this issue. However, we do not find any force in the aforesaid submission for the reason that from a bare perusal of the record it is evident that no such issue was raised by the appellant before the learned Tribunal. A copy of the written statement filed by the appellant before the learned Tribunal is annexed as Annexure -2 to the affidavit filed in support of stay application, wherein also there is no such pleading at all. Moreover, the finding recorded on issue Nos. 1 and 2 is that the car Ford Ikon No. MH -02 JA -4832 was driven very rashly and negligently and the driver of the Taxi cab No. MH03 -F -6271 was not driving rashly and negligently.

(3.) THE statutory deposit made before this Court be remitted to the Tribunal within three weeks from today, which shall be adjusted towards the deposit to be made by the appellant.