NEW INDIA ASSURANCE CO LTD Vs. SAROJ TRIPATHI

JUDGEMENT

(1.) THIS judgment shall govern the disposal of all the connected three appeals, M. A. Nos. 138, 140 and 194 of 2000 and cross-objections filed in M. A. No. 140 of 2000 by the claimants, as all the appeals arise out of the common award passed by Sixth Additional Motor Accidents claims Tribunal, Gwalior in Claim case Nos. 48 and 58 of 1992.

(2.) THE claimants as well as insurance company both have filed aforesaid appeals under section 173 of the Motor Vehicles act.

(3.) THE brief facts of the case are that on 5/1/1992 deceased Rajendra Kumar Tripathi and deceased Kamal Kumar Jain had gone to Shivpuri and were coming back in the evening at 5. 30 p. m. in a jeep No. MP 07-B 0630. The said jeep was being driven by Chandra Vikram Singh Chauhan, the respondent No. 2. At about 7. 30 p. m. near village Virawali on A. B. Road one truck was coming from opposite side, near culvert, it dashed the jeep. As a result of this accident the jeep fell down in the culvert which was 15 ft deep. The truck driver ran away from the spot along with truck and all the passengers those who were travelling in the jeep fell down. Thereafter the driver and travellers of another jeep No. UTM 5044 which was coming from Shivpuri, on seeing the accident, stopped the jeep and helped all the injured passengers, took them out from the culvert and shifted them to Gwalior and they were admitted in J. A. Group of Hospitals in Neurosurgical Ward. Looking to the serious condition of Rajendra Kumar tripathi on 6/1/1992 he was shifted to Jai Prakash Narain Hospital, new Delhi for further treatment where on 8/1/1992 he succumbed to the injuries. The matter was reported to police station and crime was registered. There is no dispute that Chandra Vikram Singh Chauhan was the driver of the said jeep and Dinesh gupta was the owner of the jeep and that the said jeep was insured with New India assurance Co. Ltd. , Agra. The claimants those who are widow, sons and daughters of Rajendra Kumar Tripathi filed Claim case No. 48 of 1992. Malti Jain, widow, son and daughters including parents of kamal Kumar Jain filed the claim petition before the Sixth Additional Motor Accidents claims Tribunal, Gwalior, which was registered as Claim Case No. 58 of 1992. After considering evidence Tribunal recorded finding in both the cases and passed the common award on 23. 12. 1999. It is held by the Tribunal that the accident took place because of rash and negligent driving of the jeep as well as the truck and held that it is a case of composite negligence. Since the truck driver ran away from the spot, therefore, the particulars of truck driver, owner and its insurance company were not available. Tribunal found that both the deceased Rajendra Kumar tripathi as well as Kamal Kumar Jain died on account of the injuries sustained in the accident and also found that the respondents are jointly and severally liable for the payment of compensation. It was also held that the claim petition was not liable to be dismissed as the owner and insurance company of the truck were not added as parties and granted compensation of Rs. 2,95,000 in Claim Case No. 48 of 1992 and a sum of Rs. 3,91,000 in Claim Case No. 58 of 1992. Against which the claimants Claim case No. 48 of 1992 have filed M. A. No. 194 of 2000 for enhancement of compensation and New India Assurance Co. Ltd. has filed two appeals M. A. No. 138 of 2000 against the award in Claim Case No. 48 of 1992 and M. A. No. 140 of 2000 against the award in Claim Case No. 58 of 1992 and in both the appeals insurance company has challenged the finding of composite negligence. Claimants in M. A. No. 140 of 2000 have also filed cross-objections under Order 41, rule 22 of Civil procedure Code and claimed enhancement of compensation.