ORIENTAL INSURANCE CO. LTD. Vs. RAJENDRA DAYA BAMANIA

JUDGEMENT

(1.) THIS appeal by the Insurance Company challenges the Award dated 27th February, 1990, made in Claim Petition No. 26/89 by the Claims Tribunal, South Goa, Margao. The Claim Petition had been instituted by respondent No. 1 claiming a sum of Rs. 3,10,000/- by way of compensation in respect of the accident that took place on 25th August, 1988, at Dangarwadi, Diu. According to the respondent No. 1 (original claimant) he came from a minor road on a cycle to the main road being the Diu-Venakbara Road. Passenger bus bearing registration No. CDB-975 driven by respondent No. 3 and owned by respondent No. 2 was proceeding at a high speed from Diu to Vanakbara and due to negligence dashed against him, as a result of which he was thrown down along with the cycle. As a result of the impact apart from multiple minor injuries he suffered a compound fracture of tibia and fibula of the right leg.

(2.) THE claim was contested on behalf of thet respondents No. 2 and 3 as also the appellant. On the basis of the evidence recorded, the Tribunal found favour with the original claimant partially. The Tribunal held that though the respondent No. 3 drove the bus rashly and negligently, yet the original claimant had also contributed to that accident. The Tribunal held that the responsibility for the accident insofar as the original claimant is concerned is 1/3 and that of the respondent No. 3 is 2/3. On several heads viz. Special damages and general damages, a compensation of Rs. 1,20,000/- was determined and thereafter the same was sought to be slashed by 10% on the ground that the original claimant is getting a lump sum award, with the result it was brought down to Rs. 1,08,000/-. Applying the ratio of contributory negligence, a sum of Rs. 72,000/- was awarded in favour of the original claimant which was directed to be paid jointly and severally by the Insurer, Insured and Driver together with 12% interest from the date of claim till complete satisfaction. By way of costs, Rs. 2,500/- were also awarded.

(3.) THIS contention of the Insurer is to be mentioned to be rejected. It is true that the original claimant in his claim petition impleaded Smt. Jethibai Transport with a suffix "Undertaking by Diu Municipal Council, Diu". It is clear from the evidence on record that passenger transport is being undertaken by Diu Municipal Council in the name of Smt. Jethibai Transport. Despite the description of respondent No. 1 as mentioned above, when the defences were filed in the Claim Petition no point was raised by the Diu Municipal Council that there has been either mistake or error in the description of the owner of the vehicle in question. Secondly, defences were signed and verified by the President of the Diu Municipal Council. It is therefore, clear that whatever description of the owners made by the original claimant in the Claim Petition was understood by the parties concerned as a claim made against Diu Municipal Council in the name and style of transport undertaken by the aforementioned Council. Apart from this, even while describing the owners as Smt. Jethibai Transport it was identified by saying that it is an undertaking of Diu Municipal Council. In this view of the matter we do not think that the claim can be allowed to be defeated on this ground.