NIRMALA WD/O NANA Vs. NAVRATAN

JUDGEMENT

(1.) THIS judgment shall govern disposal of M.A. Nos. 29/94, 30/94, 31/94, 32/94, 33/94, 34/94, 38/94, 39/94, 40/94, 41/94, 42/94, 43/94, 44/94, 45/94, 46/94, 47/94, 48/94, 49/94, 50/94, 51/94, 52/94, 53/94 and 522/93 filed by claimants and M.A. Nos. 55/94, 58/94, 56/94, 54/94, 57/94, and 471/93 filed by Insurance Company as common questions of law and facts are involved in them.

(2.) THE facts of the case, in brief, are that on 12.10.86, on the eve of 'Dashhera' festival, some persons were coming from Bijasan to Sendhwa travelling in truck no. M.T.S. 5817, belonging to non -applicant Navratan, driven by non -applicant Bhoorchand and insured with non -applicant no. 3. Due to rash and negligent driving, this truck turned -turtle, as a result of which Nana, Dinesh, Manish, Heeralal and Mangla died and Baburao, Thagubai w/o Navratan, Ratilal, Ramesh, Dinesh Gangabai, Mangia, Sulochana, Thagubai w/o Madho, Shanti Bai, Kailash, Sushila, Shantabai, Ashok, Vatsla, Meera Bai, Bheeka, Shantabai and others sustained injuries. The legal heirs of the deceased and the injured persons filed claim cases under Section 110A of the Motor Vehicles Act, 1939 (For short 'the Act') seeking compensation. The non -applicant owner and driver filed common written statement. They admitted their being owner and driver of the truck. They also admitted that this truck met with accident as a result of which above said five persons died and some occupants sustained injuries. Their defence was that the driver tried to avert accident from a truck coming from opposite direction at high speed and in doing so it overturned. They also averred that the claim applications were barred by limitation. Thereafter they did not appear and were proceeded ex -parte. The non -applicant no. 3, the Insurance Co. filed almost common written statements in all claim cases and interalia pleaded that the accident did not occur due to rash and negligent driving of the truck driver. It was also pleaded that the non -applicant driver had no valid driving licence at the time of accident and was not in the employment of the owner. They carried passengers in goods vehicle in violation of terms and conditions of the insurance policy and permit. Therefore, it was not liable to pay compensation. It also took plea of limitation. The Tribunal after appreciation of evidence came to the conclusion that the accident occurred due to rash and negligent driving of the truck by the driver. It held that the Insurance Co. could not prove that non -applicant no. 2 had no valid driving licence. It further held that the Insurance Co. was not liable to pay compensation as truck was a goods vehicle and passengers were not insured. The Tribunal dismissed all the claim cases holding them barred by limitation. Therefore, the claimants filed M.A. Nos. 29/94 to 34/94, 38/94 to 53/94 and 522/93. The claims Tribunal in claim case no. 12/92 passed ex -parte award, therefore, the Insurance co. filed M.A. No. 471/93 for setting -aside the same. It filed M.A. Nos. 54/94, 55/94, 56/94, 57/94 and 58/94 for directing the claimants to return amount of Rs. 15,000/ - paid under no fault liability as it had been exonerated from paying compensation.

(3.) INSURANCE Company has filed M.A. No. 471/93 for setting aside the ex -parte award passed against it in claim case no. 12/92. Shri H.G. Shukla, LC submitted that this claim case was pending before Addl. M.A.C.T. Badwani and was transferred to Addl. M.A.C.T. Sendhwa without any notice to the Insurance co., therefore, the Insurance co. could not appear in this case and ex -parte award was passed against it. He, therefore, prays that the impugned award be set -aside and this case be remanded to the Tribunal for decision after giving opportunity to the insurance co. to adduce evidence. Shri Jain, LC, Shri Hardiya LC for the claimants and Shri M.I. Khan, LC for the owner, submitted that as many as 29 claim cases were filed before M.A.C.T. Badwani wherein the appellant Insurance co. was party. After sometime, Motor Accident Claims Tribunal was established at Sendhwa and all the claim cases filed about this accident, were transferred from M.A.C.T. Badwani to M.A.C.T. Sendhwa and the appellant Insurance co. appeared in all cases except claim case no. 12/92, therefore, the argument that the Insurance co. had no information of transferring this case to M.A.C.T. Sendhwa, is false. We agree with Shri Jain. When all the cases filed about this accident were transferred to M.A.C.T. Sendhwa and in all cases the Insurance Co. appeared, it cannot be accepted that it did not know about the transfer of this case from Badwani to Sendhwa. Under such circumstances, in our opinion, the Insurance company failed to show good cause for non -appearance in this case. We, therefore, do not find any substance in the prayer. Even otherwise, the main contention of the appellant is that it was not liable to pay compensation as terms and conditions of the licence and permit were violated by the insured owner, therefore, it was not liable to pay compensation, is going to be considered in this appeal, therefore, the prayer for remand of this case is rejected and it is dismissed.