NATIOANL INSURANCE CO LTD Vs. RAJESH KUMAR GARG

JUDGEMENT

(1.) THIS judgment shall govern the disposal of Misc. Appeals No. 680/2000 and 682/ 2000, as they arise out of the same accident. Misc. Appeal No. 680/2000 has been filed by national Insurance Company Limited, challenging the award dated 31st July, 2000 passed by Second Additional Motor Accident claims Tribunal, Morena in Claim Case no. 186/98 and Misc. Appeal No. 682/2000 has been filed on behalf of the claimants for enhancement of compensation against the same award. Both the appeals have been filed under Section. 173 of Motor Vehicles act, 1988.

(2.) BRIEF facts of the case are that on 9th february, 1998 appellant No. 1 Rajesh Kumar (in Misc. Appeal No. 682/2000) was travelling in a truck No. MP06-A-3399 along with some ballot boxes and was coming from Damon to Morena. Vishambhar Dayal (A. W. 1) has stated that he had deputed his brother to accompany along with the ballot boxes from Damon to Morena as they were being carried for repairs. In the way near the grassland of Jhansi one truck No. M. P.-06-3268 containing cemented railway sleepers therein was coming from the opposite side and was going from Jhansi to Lalitpur. As per the F. I. R. , the truck No. MP06-A/3399 was standing and another truck No. MP-06/ 3268 came and dashed another truck No. MP06-A/3399. As a result of this accident rajesh Kumar Garg, who was traveling in the truck, received severe injuries in the head and other parts of the body. There was fracture in the skull bone which damaged the brain part and he became unconscious on spot. He was taken to Jhansi Hospital and thereafter he was shifted to JA Group of hospitals, Gwalior where he was treated in the Neurosurgery Department and remained hospitalized for more than four months. Another driver who was traveling with rajesh Kumar Garg and sleeping in the said truck also died and his claim case has been settled by the Insurance Company. The matter was reported to Police Station Seepri bazar, Jhansi where crime was registered and the truck driver of the offending truck no. MP06-3268 Triloki Singh was prosecuted. Rajesh Kumar Garg (claimant) filed claim petition No. 186/98 claim and how M. A. 682/2000for claiming compensation of rs. 18,83,000/ -. It is pleaded in the claim petition that because of the injuries sustained by Rajesh Kumar Garge he became totally disabled and his brain is damaged. He was engaged in sarafa business; because of his mental disturbances he had to close his business; he became dependent on the others and his life became miserable; he cannot walk without the help of others and he became totally disabled. Respondent No. 1 ramesh Chandra Bansal, who is the owner of truck No. MP06-3268, has stated that the insurance Company is liable for the damages as his truck was insured with the Insurance company. Respondent No. 2 who was the driver of the aforesaid truck, has not filed any reply. Respondent No. 3-National insurance Company, with whom that truck no. MP06-3268 was insured, contested the case and its contention was that the claim is on exorbitant side. The driver of truck no. MP06-3268 was driving the vehicle in contravention of the terms and policy of the insurance; he was not having valid licence and the contention was that the accident took place because of rash and negligent driving of the truck No. MP06-A/3399.

(3.) BEFORE the Tribunal claimant examined vishambhar Dayal Garg, who is the brother of Rajesh Kumar Garg as A. W. 1, Mangilal as a. W. 2, who is his father, Dr. Yogendra pradhan as A. W. 3, who was working as a registrar and Asstt. Supdt. , Neurosurgery department, JA. Group of Hospitals, Gwalir and Mannu @ Subhash as A. W. 4, an eye witness, whohad lodged the F. I. R. In defence, national Insurance Company examined trilok Singh (D. W. 1), who was driver of truck No. MP-6-3268. The Tribunal found that the truck No. MP06-A/3399 was standing at the time of accident. The accident took place on 9th February, 1998 in the intervening night at about 2. 00 p. m. near grassland Jhansi. The Tribunal further found that the truck No. MP06-3268 was liable for the aforesaid accident and there is no evidence on record that the accident took place because of negligence of the driver of truck No. MP-6-3399 and held that the insurance Company of truck No. MP06-3268 is liable for the compensation and found that rajesh Kumar Garg became permanently disabled and awarded compensation of rs. 1,67,600/- Against which, National insurance Company has filed Misc. Appeal no. 680/2000 challenging the aforesaid finding and the claimants have also filed misc. Appeal No. 682/2000 for enhancement of compensation.