RAMCHANDRA Vs. NIYAZ HUSSAIN

JUDGEMENT

(1.) Appellant-claimant has filed this appeal under section 173 of the Motor Vehicles Act (for short 'the Act') against the award dated 7.7.1999 passed by Second Additional Motor Accidents Claims Tribunal, Mandsaur in Claim Case No. 226 of 1997, by which the Tribunal has dismissed the claim on the ground that he has already received compensation for the damage of his jeep from his own insurance company.

(2.) Undisputedly, the brief facts of the case are that on 8.6.1996, while claimant was going from Neemuch to Mandsaur in his own Commander jeep bearing registration No. MP 14-5862, near Malhargarh one truck No. CPF 9907 which was being driven by respondent No. 2 Omprakash, rashly and negligently, came from opposite side and dashed the jeep. The claimant as well as the persons travelling in the jeep sustained injuries and the matter was reported to P.S. Malhargarh. Thereafter, the injured-claimant aged about 40 years was admitted in the District Hospital, Mandsaur where he remained for more than a week. In the claim petition his submission was that on account of the injuries received by him in the accident his arm was fractured and thereafter he was operated at Satya Sai Institute of Higher Medical Science, Anandpur (Andhra Pradesh). His Commander jeep which met with accident was also fully damaged. He filed a claim petition seeking compensation for the damage of his jeep as well as his injuries. The claim was contested by the insurance company. After recording the evidence of both the parties, Tribunal has recorded a positive finding about the rash and negligent driving of the truck by its driver and also about the accident. But the Claims Tribunal has found that the claimant has failed to prove his injuries sustained in the accident. The Claims Tribunal has further found that the insurance company of the jeep was also necessary party in the petition before the Tribunal. Learned Tribunal dismissed the claim petition on the ground that claimant failed to prove the injuries sustained by him in the accident. The Claims Tribunal also did not award any compensation for the damage of Commander jeep on the ground that the claimant is admitted to have received the compensation of about Rs. 50,000 in full and final settlement from the insurance company with which the jeep was already insured. The Tribunal has further found that both the drivers of the jeep and the truck were liable for the accident, therefore, the negligence in driving the vehicle was also assessed in the ratio of 40:60. The Tribunal has also held that as the claimant was the owner and the driver of the aforesaid Commander jeep, the insurance company of the jeep ought to have been made necessary party in the claim petition. It has also come in the evidence that since the driver of the jeep was also negligent up to 40 per cent, the Claims Tribunal restricted the liability of the insurance company up to 60 per cent but has not awarded any compensation up to that limit.

(3.) 1 have heard Mr. Vijayavargiya, the learned counsel for appellant and Mr. H.G. Shukla, learned counsel for respondent No. 3, insurance company.