RAJ BAI Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) CLAIMANTS have filed this appeal under section 173 of the Motor vehicles Act, 1988 against the award dated 8. 5. 2003 passed by First Motor Accidents claims Tribunal in Claim Case No. 62 of 2003.

(2.) BRIEF facts of the case are that on 16. 10. 2000, the deceased Kanahayaram prajapati was travelling in truck No. UP 78-T 2129 along with his goods. The said truck owned by Surendra Kaur, respondent no. 3 was being driven by S. Ali, respondent No. 2 on the Agra-Bombay Road and when the vehicle reached between Parbila babdi and Bilonia, because of rash and negligent driving of the truck, the driver lost its balance, the said truck turned turtle and met with an accident. Kanahayaram who was travelling in the truck died. The claimants those who are the legal heirs of the deceased Kanahayaram filed the claim application for claiming compensation of rs. 18,50,000 before the Motor Accidents claims Tribunal, Guna. Before the Claims tribunal, the respondent Nos. 2 and 3 (i. e. , driver and owner of the offending vehicle)remained ex pane and the claim was contested by insurance company, respondent no. 1. The main objection of the insurance company in the written statement was that s. Ali, driver of the truck was not having valid driving licence and was not entitled to drive the said truck. It was also submitted that the truck is insured as a goods vehicle and was not insured for carrying passengers. Deceased Kanahayaram was travelling in the truck as a passenger and the driver was driving the truck contrary to the terms and conditions of the insurance policy, therefore, there is a breach of the policy and for the death of the deceased, insurance company is not liable to pay any compensation.

(3.) ON the basis of the aforesaid pleadings of the parties, issues were framed, evidence of the parties was recorded and the Tribunal recorded a finding that the accident took place because of rash and negligent driving by the driver of the said truck. Tribunal also found that Kanahayaram who was travelling in the said truck died because of the accident and the respondent Nos. 2 and 3 (driver and owner)committed the breach of the terms and conditions of the policy. Therefore, it is held that the insurance company is not liable to pay compensation and after considering the evidence of the claimants, awarded compensation of Rs. 2,15,000 along with interest at the rate of 8 per cent per annum against the owner and driver of the offending vehicle. Against which the claimants have filed this appeal for enhancement of the compensation on two grounds, firstly, adequate compensation has not been awarded, the income of the deceased has not been considered properly and proper multiplier has also not been applied. Secondly, the Tribunal has wrongly exonerated the insurance company from the liability to pay compensation to the claimants. It was also argued that since it is difficult to recover the amount of compensation from the owner of the vehicle by the claimants, therefore, a direction may be given to the insurance company to pay the amount of compensation with liberty to the insurance company to recover the same from the owner and driver of the vehicle.