NATIONAL INSURANCE CO LTD Vs. SARWATIBAI

JUDGEMENT

(1.) THIS is an appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') by the appellant, insurer, National Insurance Co. Ltd. (for short 'insurance company'), against an award dated 9th January, 1990, passed by the Motor Accidents Claims Tribunal, Gwalior (for short 'the Tribunal') in Claim Case No. 13 of 1987, whereby on an application under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Old Act') compensation of Rs. 32,000/-has been awarded to claimant-respondent Nos. 1 to 6 for the death of Ramesh Sen arising out of the use of a motor vehicle- truck No. UTR 5105. Respondent No. 1 is the widow of deceased Ramesh Sen, respondent No. 2 is the mother of the deceased and respondent Nos. 3 to 6 are the sons and daughters of the deceased.

(2.) THE Tribunal on evidence found that the accident occurred on 19. 1. 1987, when Ramesh Sen was going on the side of a road, he was struck by truck No. UTR 5105 on his back, as a consequence of which he fell down and received multiple injuries including two fractures in both legs. The deceased was taken to hospital, where he died on the next day. The claimants averred that the deceased was earning Rs. 25/- per day by doing the job of barber. The owner and driver of the vehicle, respondent Nos. 7 and 8 and the appellant took the defence that the deceased was travelling as a gratuitous passenger in the truck (No. UTR 5105); on the fateful day a truck No. CPG 4595 was going ahead which suddenly stopped by applying the brakes; therefore, the truck No. UTR 5105, which was following truck No. CPG 4595, dashed against the rear portion of the truck going ahead and because of this collision the deceased received injuries. Thus, the appellant insurance company took the defence under Section 96 (2) (b) (i) (a) that as the deceased was travelling in the truck as a gratuitous passenger, the insurance company was not liable to pay any compensation or to indemnify the owner/insured.

(3.) THE Tribunal after recording of evidence held that the deceased was not travelling in the truck as a gratuitous passenger; he was dashed on his back when he was on the road; the first information report of the accident, though produced in the case, was neither legally proved nor was lodged by any eyewitness; neither the appellant insurance company, nor the owner or the driver of the vehicle UTR 5105 examined any witness to prove their defence even after availing of a number of opportunities. Therefore, the Tribunal held that the accident occurred due to the rash and negligent act of the driver of the truck. On quantum of compensation, the Tribunal held that the income of the deceased was at the rate of Rs. 10/- per day. As the deceased was a young man of 30 years of age, after applying the multiplier of 16 years and deducting the deceased's own expenses at the rate of Rs. 100/- per month, the Tribunal awarded compensation of Rs. 38,400/- but gave a deduction of lump sum of Rs. 6,400/ -. Thus, the compensation payable was awarded at Rs. 32,000/- with 12 per cent interest per annum from the date of the application till realisation, It is this award which has been challenged in appeal by the insurance company.