KM. RUBI MISHRA Vs. VIMLA SETHI

JUDGEMENT

(1.) PRESENT first appeal from order has been filed under Section 173 of Motor Vehicle Act against the judgment and award dated 17.11.2007 passed by the Motor Accident Claim Tribunal/District Judge Court No. 2, Lucknow in claim petition No. 56 of 2004, Km. Rubi Mishra and others v. Smt. Vimla Sethi and others.

(2.) BRIEF background of the case is that on 30.9.2001 Sheo Kishor Misra, who was driver of the Truck No. U.P.32/A-7630 was going to Raibareilly from Lucknow at 9.00 p.m. near Gaura Petrol Pump from the front side another Vehicle being Eicher Canter No. U.P. 70T/9392 which was rashly and negligently being driven, colluded with the aforementioned truck in question and on the spot Sheo Kishore Mishra died. In respect of said incident in question, claim petition was filed, impleading Smt. Vimla Sethi owner of the Truck No. U.P.32/A-7630 and Satyender Singh Puri owner of Eicher Canter No. U.P. 70T/9392 and respective insurance company wherein both the vehicle in question have been insured namely, New India Insurance Company Ltd., 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow and the Oriental Insurance Company Ltd. Division Office - 2,21 M.I.G. Flat Stanley Road, Allahabad. Notices were issued in the said claim petition. Smt. Vimla Sethi in-spite of service of notice did not turn up to contest the case, and on 16.12.2006 order was passed to proceed against her. Written statement was filed on behalf of the owner of the Eicher Canter No. U.P. 70T/9392 and therein it was stated that accident in question took place on 30.9.2001 at 9.00 p.m. at Lucknow- Raibarelly road near M/s S.B. Petrol Pump, which falls within the domain of Police Station Mohan Lalganj and said site of the incident is over crowded locality and accident in question has occurred on account of negligent driving of driver of the Truck No. U.P.32/A-7630. It was also mentioned therein that cleaner of Eicher Canter No. U.P. 70T/9392 namely Pinto son of Bihari Lal Verma had also got first information report lodged at police station Mohanlalganj. It was also informed that in the said incident driver of Eicher Canter No. U.P. 70T/9392 namely, Umesh Prasad Shukla has also died and Umesh Prasad Shukla as he was in his employment, on his behalf claim petition had been filed under the Workmen's Compensation Act,1923, wherein claim had been allowed and a sum of Rs. 2.07,980/- has been awarded. Plea has also been sought to be taken that proceeding ought to have been undertaken under the Workmen's Compensation Act,1923. It has also been sought to be contended that mandate has to be fastened, same is to be fastened on Oriental Insurance Company Ltd. Division Office-2, 21 M.I.G. Flat Stanley Road, Allahabad. Written statement was also filed on behalf of the New India Insurance Company Ltd., 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow and therein plea was taken that on account of negligence and rash driving of Eicher Canter No. U.P. 70T/9392 accident had occurred and as such New India Insurance Company Ltd., 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow was not at all responsible. Written statement was filed on behalf of the Oriental Insurance Company Ltd. Division Office-2,21 M.I.G. Flat Stanley Road, Allahabad and therein entire burden of accident was sought to be placed on the shoulder of truck driver and it was contended that driver of Eicher Canter was driving carefully. Further it was stated that claim petition was unsustainable and further right under Section 170 of Motor Vehicle Act has been sought to be reserved.

(3.) IN the present case on behalf of New India Insurance Company Ltd., 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow, appearance has been put in through Sri Dinesh Kumar, Advocate and rest of the respondents inspite of service of notice had not entered appearance.