NEW INDIA ASSURANCE CO LTD Vs. RAMDEEN

JUDGEMENT

(1.) THIS is insurer's appeal against the final award passed on 27.2.1988 under Section 110-B, Motor Vehicles Act, 1939, for short, 'the Act'. An application under Section 110-A of the Act was filed claiming compensation in the sum of Rs. 2,12,000/-. During the course of trial of that application, on 22.12.1987, an order of interim compensation was passed in the sum of Rs. 13,000/- invoking the provisions of Section 92-A of the Act. However, when final award was passed to enforce liability on 'fault', the Tribunal found that negligence of the driver of the offending motor vehicle was not proved and, therefore, the claim was dismissed. Admittedly, the order dated 22.12.1987 has remained unchallenged so far. Admittedly, also, there is no cross-objection in this appeal for enhancement of the compensation to enforce liability on 'fault'.

(2.) INSURER 's Counsel, Mr. V.K. Sharma, submitted that Section 92-A was not born when (Sic. accident took place and the) order dated 22.12.1987, he submits, is illegal. He has further submitted that the Tribunal ought to have recalled that order when passing the final award, but that has not been done illegally. Therefore, the final award is challenged.

(3.) ON merits, what I find in this case is beyond any pale of controversy. The fact established is that the bus turned turtle. That position is not disputed. The doctrine of res ipsa loquitur is immediately attracted. No other evidence had to come to establish the negligence of the driver. Unfortunately, there is no cross-objection challenging the impugned award passed on 27.2.1988 dismissing the claim and as such, I cannot interfere with that order. It is true, the insurer would have been liable in respect of liability on 'fault' to the extent of Rs. 5,000/- only in terms of Section 95(2)(b)(ii), Clause (4), as it then existed, but there is no occasion for me to vary in any manner the impugned award dated 27.2.1988 and to grant any relief on that basis to the insurer. The short and simple reason is that the insurer is bound by the order dated 22.12.1987 passed against him which is not appealed against.