KIRAN CHHABRA Vs. HITESH CHHABRA

JUDGEMENT

(1.) -Being aggrieved by the award dated 18/11/2005 passed by X MACT, Indore in claim case No.28/2003 whereby in a death case claim petition filed by the appellants was dismissed, the present appeal has been filed.

(2.) Short facts of the case are that appellants filed a claim petition before the learned tribunal on 02/09/2003 alleging that deceased/Surendra Chhabra was the husband of appellant No. 1, father of appellant No.2 and son of appellants No.3 and 4. It was further alleged that on 11/11/2002 at about 21.45 PM Surendra Chhabra was going on his scooter bearing registration No. MP-09/JL/2072 which was owned by respondent No. 1 and insured with respondent No.2. It was also alleged that because of slip Surendra Chhabra fell down and sustained head injury. It was alleged that Surendra Chhabra was brought to the hospital where he passed away on 21/11/2002. It was prayed that since the offending vehicle was insured with respondent No.2, therefore, claim petition be allowed and compensation be awarded. The claim petition was contested by the respondent No.2 on various grounds including on the ground that respondent No. 1 is none else but the son of deceased. It was alleged that since the accident occurred on the part of negligence of deceased himself and also the fact that deceased was not having the valid and effective driving license at the relevant time, therefore, insurance company is not liable for payment of compensation. It was alleged that since income of the deceased has been assessed more than Rs.40,000/- per year, therefore, appellants are not entitled for any amount of compensation. It was alleged that since the deceased was borrower of the offending vehicle, therefore, the appellants were stepping in the shoes of respondent No.1 and not entitled for any compensation under Section 163-A of the Motor Vehicles Act. After framing of issues and recording of evidence, learned tribunal dismissed the claim petition filed by the appellants, against which the present appeal has been filed.

(3.) Learned counsel for the appellants argued at length and submit that since the income of the deceased was more than Rs.40,000/- per year, therefore, only claim petition filed by the appellants filed under Section 163-A of the Motor Vehicles Act could not have been dismissed. It is submitted that this cannot be a ground for dismissal of claim petition. Learned counsel placed reliance on a decision in the matter of National Insurance Co. Ltd. Vs. Amar Nath 2005 (1) D.M. P. 14 (H.P.) wherein Scooter skidded and scooterist died due to head injury High Court of Himachal Pradesh held that requirements to be established are only factum of accident, age and income of deceased. It was held that insurance company is liable to pay compensation. Learned counsel further placed reliance on a decision in the matter of Sarla Verma Vs. Delhi Transport Corporation 2009 AC J 1298 wherein Hon'ble Apex Court observed that compensation will be higher where deceased was ideal and not having any income. Reliance is also placed on a decision of this Court in the matter of Smt.' Savitridevi Vs. Ajay Navaria in MA No.379/2003 decided on 17/09/2003 in a claim petition filed under Section 163-A of M.V. Act, this Court has awarded compensation of Rs.1,80,000/-. Lastly reliance was also placed on a decision of Division Bench of this Court in the matter of Sitabai Vs. KB. Saxena 1 (2007) ACC446 (DB) this Court held that in a accident case even if accident occurred due to negligent driving of deceased, then too, it is immaterial for disposal of claim petition filed under Section 163-A of Act. It was further held that since accident occurred by a vehicle which was owned by respondent No. 1 and insured with respondent No.2, therefore, they are liable to pay compensation. It is submitted that the appeal filed by the appellants be allowed and the impugned award passed by learned tribunal whereby the claim petition filed by the appellants was dismissed, be set-aside and the adequate compensation be awarded.