NALINI Vs. VIJAYPRASAD

JUDGEMENT

(1.) THESE two appeals involve common questions and, therefore, can be conveniently disposed of by this common judgment. The original claimants have filed First Appeal No. 206 of 1997 taking an exception to the award passed by the learned Member, Motor Accidents claims Tribunal in Claim Petition No. 262 of 1997, whereby the Tribunal awarded compensation of Rs. 56,000 to claimants with interest at 12 per cent per annum from the date of the application till realisation mainly on the ground that the compensation awarded is grossly inadequate. Whereas first Appeal No. 15 of 1997 has been filed by New India Assurance Co. Ltd. against the same award passed by Claims Tribunal on the ground that the Tribunal wrongly fastened the liability on it to indemnify the owner and that the owner of the vehicle has been exonerated from the payment of compensation.

(2.) BRIEF facts are required to be stated as under: mukundrao Bhoyar died as a result of the accident arising out of the use of motor vehicle, namely, scooter bearing No. MGV 7400 and this motor vehicle is owned by respondent No. 1 and the said vehicle has also been duly insured with New India assurance Co. Ltd. , respondent No. 2. Respondent no. 1 had given this scooter for repairs in the garage of respondent No. 3 who is a repairer. The accident occurred on 1. 4. 1985 at about 18. 30 hours. Deceased mukundrao was riding a bicycle from Ajni towards Takiya Dhantoli and when he reached near the All India Reporter Building, dhantoli, one Raju Martine had come on scooter bearing No. MGV 7400 in a very high speed from the opposite direction and by coming on the wrong side gave violent dash to the bicycle. Consequently, mukundrao Bhoyar fell down and sustained grievous injuries. He was immediately removed to the Government Medical College and Hospital where he succumbed to the injuries on the next day. Post-mortem examination was conducted there and the doctor opined that the probable cause of death was due to intra cranial haemorrhage due to head injury. The claimants being the widow, major sons and a daughter, who are the legal representatives of the deceased, had filed an application under section 110-A of the Motor Vehicles Act, 1939. It is contended that the scooter was being driven in a rash and negligent manner on the relevant date and time and that all respondents were jointly and severally liable to pay compensation. It was further contended that the age of the deceased was around 45 years at the time of the accident, he was a businessman and his monthly income was not less than Rs. 1,500 from the business of printing press and besides he had taken voluntary retirement from service. It is contended that he used to contribute Rs. 1,200 per month for the upkeepment and maintenance of the family members and, therefore, claimants claimed a total compensation of Rs. 1,92,000 inclusive of compensation for the loss of consortium, mental agony, suffering and funeral expenses with interest and costs.

(3.) THE respondent insurance company resisted the claim and contended that the scooter was being driven by respondent no. 3 without holding the valid licence and the owner of the motor vehicle involved in the accident did not adduce any evidence to show that he was not liable to pay compensation. It was contended that since the driver of the scooter was not holding a valid licence, insurance company cannot be made liable to pay the amount of compensation and the claim petition is liable to be dismissed. On the aforesaid pleadings, the Claims Tribunal has framed the issues. The claimants examined three witnesses and relied on oral as well as documentary evidence placed on record in support of their contentions. The insurance company did not examine any witness in support of its contentions. Tribunal on considering the evidence and material available, recorded the finding that Mukundrao Bhoyar died as a result of accident arising out of the use of the motor vehicle and that the scooter was being driven in a rash and negligent manner by the respondent No. 3 on the relevant date and time without permission of the scooter owner, respondent No. 1 and exonerated the owner of scooter, respondent no. 1, from liability to pay the amount of compensation. Tribunal also recorded the finding that insurance company, respondent No. 3, cannot be absolved from liability to pay compensation and consequently directed the respondent Nos. 2 and 3 to pay jointly and severally the total amount of compensation of Rs. 56,000 by the award dated 19. 3. 1996. This award is under challenge in this appeal.