NEW INDIA ASSURANCE COMPANY LTD Vs. KUSUM LATA

JUDGEMENT

(1.) THIS is an appeal under Section 110-D of motor Vehicles Act, 1939 against the judgments and award dated 11th of January, 1988 passed by the 11th Additional District, judge, Meerut in M. A. C. T. No. 399 of 1985 whereby and whereunder it has awarded a sum of Rs. 96,200/- has compensation amount to the claimant-respondent Company, the appellant herein with interest at the rate of 6 per cent p. a.

(2.) ONE Gopal Krishan alongwith his wife was travelling in a Jeep bearing registration no. DHC 5568 on 4th June, 1985. The said vehicle was being driven by Mridul Kumar, opposite party No. 1 and was owned by g. K. Mittal, opposite party No. 2 in the claim petition and was insured with M/s. New India assurance Company Ltd. , opposite party No. 3, in the claim petition. The said Insurance company has filed the present appeal. The said vehicle according the claim petition was being driven rashly and negligently and met with an accident with a Tanga. The accident took place at about 12. 30 p. m. on 4th June, 1985. It was stated that the driver of the Jeep lost control over his vehicle after seeing the tanga and he wrongly turned the Jeep towards the Tanga with the result the bamboo of the tanga hit Gopal Krishan who died on the spot. It also hit another passenger, Arun Kumar who received serious injuries and died after 3-4 days in the hospital. The deceased was aged about 30 years and was an income tax assessee. He was carrying on the business of cement stockist and was earning around rs. 2,000/- p. m. The Insurance Company filed a separate written statement denying the allegation that the accident was caused due to rash and negligent driving of the Jeep. It was pleaded that the accident caused due to Tangawala and the allegation of rash and negligent driving of the jeep or its driver was denied. However, the fact that the vehicle in question was insured with it, was admitted subject to additional pleas vide para 17 of the written statement. In the additional pleas it was pleaded that the Insurance Company is not liable as the deceased is not a third party and that it "takes all the pleas open to it under section 95/96 of the Motor Vehicles Act", vide para 30 of the written statement.

(3.) ON the basis of the pleadings of the parties the following three issues were struck: 1. Whether the accident has taken place due to rash and negligent driving of mridul Kumar? 2. Whether Gopal Krishan died in this accident? 3. To what compensation the claimants are entitled and from which of the opposite parties.