TULSI RAM Vs. JAIVEERSINGH

JUDGEMENT

(1.) This is appellants-claimants' appeal under section 173 of the Motor Vehicles Act for enhancement of compensation against the award dated 2.1.2002 passed by Additional Motor Accidents Claims Tribunal, Mandsaur, in Claim Case No. 124 of 2001.

(2.) The brief facts of the case are that on 25.1.2001 at about 4 p.m. the deceased Deepak, aged about 20 years, who was the son of the claimants and was working as a barber, going to Jaora from Mandsaur in a loading autorickshaw. The said autorickshaw came on the dhaba of Dilipsingh and was stopped for a while. At the same time one truck bearing registration No. HR 38-D 4243, owned by respondent No. 2 and which was being driven by respondent No. 1, came from Jaora side rashly and hit the autorickshaw which was standing. The said truck was insured with respondent No. 3. On account of this accident, the loading autorickshaw turned turtle and deceased Deepak who was sitting in the autorickshaw died on the spot. Immediately he was taken to the Government Hospital, Jaora, where his post-mortem was performed. Exh. P-5 is the report of post-mortem. The matter was also reported to the Police Station, Jaora. Thereafter, the claimants who are the father and mother of the deceased, have filed claim petition in which notices were directed to be issued. Respondent Nos. 1 and 2, driver and owner, remained ex parte. The claim was contested by the respondent No. 3 insurance company who denied the claim and submitted that the compensation should be recovered from the owner of the loading autorickshaw under Workmen's Compensation Act and also objected that the vehicle was not insured with the respondent insurance company and driver of the offending vehicle was not having valid and effective driving licence, therefore, he committed breach of the terms and conditions of the policy. The Tribunal after recording evidence of the parties recorded a finding that the accident took place due to rash and negligent driving of the truck by its driver Jaiveersingh and it was also found proved that on account of the said accident deceased died on the spot. The insurance company has not produced any evidence nor has produced the copy of the insurance policy to prove that the vehicle was not insured with the respondent insurance company. The Tribunal also recorded a finding that the driver of the truck has not committed any breach of the terms and conditions of the policy. In fact it was the burden on respondent insurance company to prove that the vehicle was not insured with the insurance company. In the absence of any evidence on behalf of the insurance company, in a third party claim case a presumption can be drawn that vehicle was insured with the respondent insurance company. The Tribunal found that the deceased was earning Rs. 50 per day and Rs. 1,500 per month and assessed the dependency at Rs. 1,000 per month and Rs. 12,000 yearly and applied the multiplier of 12 and awarded compensation of Rs. 1,44,000 and also awarded compensation of Rs. 2,000 for funeral expenses and thus awarded a total compensation of Rs. 1,46,000 with interest at the rate of 9 per cent per annum from the date of filing of the claim petition, i.e., 2.2.2001, against which the claimants have filed this appeal for enhancement of compensation.

(3.) We have heard Mr. J.B. Dave, the learned counsel for appellants; Mr. P.K. Gupta, learned counsel for respondent No. 3 and perused the record. None appeared on behalf of respondent Nos. 1 and 2.