MADHU Vs. NARENDRA KUMAR

JUDGEMENT

(1.) A young girl aged about 12 years met with an accident on 3. 1. 1980, while she was playing in front of her house. A scooter driver came on his scooter No. MPN 6991 and dashed the girl, as a result of which the girl received injuriesabrasions and a compound fracture in right knee joint at end of the tibia. She remained under treatment and under plaster for about 1/2 months. An application under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Act') was filed through her father, the natural guardian, on 9. 7. 1980. After the trial, the Tribunal held that the application is barred by time by four days. Though the Tribunal awarded a compensation of Rs. 2,000/- for the injuries but dismissed the claim as barred by time. The respondent No. 3, the insurance company, was exonerated because the policy was not proved by the owner of the vehicle, respondent No. 1.

(2.) THE claimant has come before this court under Section 110-D of the Act, aggrieved of the dismissal of the application as barred as well as the quantum of compensation so awarded. Before this court, on behalf of the owner, a receipt of the premium has been filed, which is dated 24. 12. 1979 for Rs. 95/- and certificate No. 620591 was issued for the relevant period covering the risk. The owner has filed an affidavit also to the effect that the same vehicle met with the accident, which was insured with the respondent No. 3 and the premium was paid by him of Rs. 95/ -. On behalf of the respondent No. 3, i. e. , the insurance company, time was sought to verify the fact whether the vehicle was insured at the relevant time or not, but today Mr. Samadani, learned counsel for respondent No. 3, informs that the record of the insurance company is not traceable being very old and also the office building collapsed, as a result of which record was destroyed. He is not able to controvert the receipt as well as the affidavit, but admits that this receipt was issued by the National Insurance Co. Ltd. , which mentions the certificate so issued covering the risk, only the number of the vehicle is not mentioned therein.

(3.) MR. H. S. Rajpal, learned counsel for the appellant, contended that the Tribunal could not have dismissed the claim as barred by time because the claim was on behalf of a minor, the said claim could have been filed even after attaining majority, i. e. , after attaining the age of 18 years. He placed reliance on a Bench decision of this court reported in Hayatkhan v. Mangilal 1970 ACJ 254 (MP ). He contends that the compensation awarded is too low looking to the nature of injuries and it ought to have been minimum Rs. 5,000/ -. Reliance was placed on a Bench decision of this court reported in Vinod Kumar Shrivastava v. Ved Mitra Vohra 1970 ACJ 189 (MP ). Mr. Rajpal further contended that interest at the rate of 12 per cent per annum ought to have been awarded, which the Tribunal has erred in not awarding the same. Mr. Punjwani, learned counsel for respondent No. 1, contended that in case if any liability arises, it is to be indemnified by the insurance company. Moreover, it was the duty of the insurance company to place all the material before the court showing that at the relevant time the vehicle was not insured. The insurance company keeps the record of the vehicles so insured and a copy of their policy. The scooter was insured with the National Insurance Co. Ltd. continuously, later policy was also filed. He placed his reliance on a recent decision of the apex court reported in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), more particularly paragraph 10 of the said decision. Mr. Samadani, appearing for the insurance company, could not controvert the receipt issued by the insurance company and also the affidavit, to state that whether the vehicle was insured or not. On the other hand, he has fairly conceded that the receipt filed by the owner before this court has been issued by the insurance company and it seems that the risk at the relevant time was covered.