NEW INDIA ASSURANCE CO LTD Vs. PRABHAWATI DEVI

JUDGEMENT

(1.) THIS appeal filed by the Insurance Company arises out of judgment and order dated 21.01.2008 passed by the concerned Motor Accidents Claims Tribunal, Mirzapur awarding a sum of Rs.3,20,200.00 alongwith interest @ 7% per annum from the date of presentation of claim petition till its realisation payable to the claimants on account of death of the deceased.

(2.) THE fact remains that the deceased was travelling by a truck no. U.A.N. 8427 as owner of cattle being cows and buffaloes alongwith son, a trader, driver and cleaner sitting in cabin. THE vehicle was allegedly driven rashly and negligently by the driver which hit a tree and met with an accident as a result whereof the deceased died and his son become injured. THE version of the driver is that he wanted to save some stray cattle on the road when the truck hit a tree and met with an accident. THE tribunal accepted the version of the eye witness i.e. son of the deceased and held that the driver was rash and negligent at the time of driving the vehicle. It has also been held by the tribunal that the opposite parties not cross examined the witness on that score. From the analysis of the evidence, as made by the tribunal, it appears that the vehicle was carrying cattle i.e. cows and buffaloes and the driver rashly and negligently driven the vehicle. THEre was no violation of insurance policy. Before the tribunal at no point of time neither any issue was framed nor any discussion was held as to whether the deceased was "gratuitous passenger" or not. However, the appellant has raised such issue before the Court of appeal for the first time.

(3.) SECTION 147 of the Act contemplates policy of insurance against any liability which may be incurred by a person in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place etc.