SHYAMLAL Vs. GHANSHYAM

JUDGEMENT

(1.) BEING aggrieved by the award dated 31/07/2009 passed by II MACT, Rajgarh in claim case No.41/2009 whereby the claim petition filed by the appellants for compensation was allowed holding the respondent Nos.1 and 2 liable for payment of compensation and respondent Nos.3 and 4 were exonerated, present appeal has been filed.

(2.) SHORT facts of the case are that appellants filed a claim petition alleging that Nandkishore was their son aged 22 years. On 17.01.2006, deceased Nandkishore was going from Indore to Bioara on motorbike, at that time, one Maruti Van dashed the motorbike of the deceased, with the result Nandkishore sustained injuries and was hospitalized at District Hospital Shajapur from where he was referred to Gokuldas Hospital, Indore where he passed away on 20.01.2006. It was alleged that Maruti Van bearing registration No.MPO9 -H -4985 was owned by respondent No.1 and driven by respondent No.2 rashly and negligently. While the motorbike was owned by respondent No.3 and insured with respondent No.4. It was prayed that claim petition be allowed and compensation be awarded. The claim petition was contested by respondent No.4 on various grounds including on the ground that the accident occurred because of rash and negligent driving of respondent No.2, therefore, respondent No.4 is not liable for compensation. It was prayed that claim petition be dismissed. On the basis of the pleadings of the parties, learned Tribunal framed the issues, recorded the evidence and allowed the claim petition and exonerated respondent Nos.3 and 4 against which the present appeal has been filed.

(3.) LEARNED counsel for the appellants submit that impugned award is illegal, incorrect and deserves to be set -aside. It is submitted that extra premium of Rs.50/ - was charged by the respondent No.4 which goes to show that respondent No.4 covered the risk of owner and driver of the motorbike. It is submitted that since deceased was driver and respondent No.3 who was owner of offending vehicle which was insured with the respondent No.4 and extra premium was paid, therefore, learned tribunal was not justified in dismissing the claim petition filed by the appellants. It is submitted that since the risk of the deceased was covered upto the amount of Rs.1,00,000/ -, therefore, learned tribunal ought to have been awarded a sum of Rs.l,00,000/ - at least. Learned counsel placed reliance on a decision in the matter of Kunti Ahirwar Vs. State of M.P. .2007 (1) MPLJ 396 wherein in a case of personal insurance policy taken by owner of the vehicle to cover his own risk, Division Bench of this Court held that claim by legal representatives of the deceased is maintainable before the Accident Claims Tribunal. Reliance is also placed on a decision in the matter of Sunita Lokhandhe Vs New India Assurance Co. Ltd 2008(1) MPLJ 54 wherein Full Bench of this Court held that owner cannot claim compensation in respect of injury or death suffered by him 'in a motor accident unless additional premium in respect of such personal injury or death has been paid by way of special insurance contract. It is submitted that this aspect of the case was not at all considered by the learned tribunal. It is submitted that learned tribunal was not justified in directing the appellants to avail the appropriate forum for claiming compensation for which extra premium was paid. It is submitted that appeal filed by the appellants be allowed, adequate compensation be awarded and impugned award passed by the learned tribunal be set - aside holding that appellants are entitled for compensation and respondent No.4 is liable to pay the compensation to that extent.