BINDU MISHRA Vs. UDAY YADAV

JUDGEMENT

(1.) This appeal has been filed by the claimants/appellants under Sec. 173 (1) of the Motor Vehicles Act, 1988 against the award dtd. 27/2/2018 passed in MACC. No.3400165/2016 (Bindu Mishra and Others Vs. Uday Yadav and Others) passed by Second Additional MACT, Satna seeking enhancement of compensation, whereas, respondent-Insurance Company has filed cross-objections seeking setting aside of impugned award/reduction of compensation amount/exoneration from liability to pay the compensation.

(2.) Learned counsel for the appellants/claimants submits that Tribunal has awarded consortium only to appellant No.1, whereas, Tribunal should have awarded consortium to all the appellants at the rate of Rs.40,000.00. Further, it is also urged that Tribunal has deducted 30% for income tax, whereas, income tax should have been deducted as per prevalent tax rates. In this connection, learned counsel for the appellants has relied upon Smt. Shashi Gupta and Others Vs. Shriman Yadav and Others (M.A.No.2526 of 2020 dtd. 5/12/2022). Further, after referring to para-19 and 21 of impugned award, learned counsel for the appellants submits that Tribunal has rightly held that deceased comes within the purview of third party. In this connection, he has relied upon New India Assurance Co. Ltd. Vs. Shanti Bopanna and Others 2017 ACJ 2045 SC, AIR 2003 SCC 607. Further, it is also urged that instant accident has occurred on account of rash and negligent driving of offending vehicle by respondent No.1. On above grounds, it is urged that compensation awarded by the Tribunal be enhanced and cross objections filed by respondent-Insurance Company be dismissed.

(3.) Learned counsel on behalf of the respondent/Insurance Company submits that deceased had taken offending vehicle on hire for Departmental work from respondent No.1. Therefore, he will step into the shoes of owner of offending vehicle. Therefore, he will not come within the purview of third party. In this connection, he has relied upon The Oriental Insurance Company Limited Vs. Meena Variyal and Ors, AIR 2007 SC 1609. It is also urged that from evidence on record, it is clearly evident that present accident has occurred not on account of rash and negligent driving by driver of offending vehicle, instead accident has occurred on account of bursting of tyre. For maintaining a claim petition under Sec. 166 of Motor Vehicle Act. Rash and negligent driving is sine qua non/mandatory requirement. It is also urged that it is claimant, who has to prove factum of rash and negligent driving. In this connection, learned counsel for the respondent has relied upon Surendra Kumar Arora and another Vs. Manoj Bisla (Dr.) and Others, 2012 (3) T.A.C. 353 (S.C.). Therefore, one of the essential requirement for maintaining claim petition under Sec. 166 of the Motor Vehicle Act is not established.