DIVISIONAL MANAGER UNITED Vs. PRADHAN

JUDGEMENT

(1.) THE United India Insurance Company Ltd. (hereinafter referred to as the 'Insurer') has filed this appeal challenging the award dated 27.6.1998 passed by the 2nd M.A.C.T. (S.D.), Berhampur in M.A.C. No. 837 of 1996 (656/96). Respondents 1 to 3 were the claimants before the Tribunal.

(2.) FACTS of the case, briefly stated, are that on 7.10.1996 at about 3 p.m. on N.H. No. 5 near Rambha Sama Ghati while the deceased Antara Pradhan who was the husband of respondent No. 1, father of respondent No. 2 and son of respondent No. 3, was standing on the left side of the road, a truck bearing registration No. WMQ 5123 being driven in rash and negligent manner dashed against him causing his instantaneous death. The claim application was filed claiming compensation of Rs. 5,00,000/ - from the appellant and respondent No. 4.

(3.) FOUR issues were framed by the 2nd Motor Accidents Claims Tribunal (S.D.), Berhampur (hereinafter referred to as the 'Tribunal') in order to determine the case. The Tribunal found that due to rash and negligent driving of the driver of the offending vehicle the accident was caused and in that accident the deceased died and the claimants respondent Nos. 1 to 3 are entitled for compensation. It was further found that the deceased was earning Rs. 2,098/ - per month and arrived at his contribution to the family to be about Rs. 1498/ -. Thus, in total, a compensation of Rs. 3,05,592/ - was quantified for loss of dependency. That apart, the Tribunal awarded Rs. 15000/ - towards loss of love and affection of a son to respondent No. 3 at her old age, Rs. 2000/ - for obsequies and Rs. 1000/ - towards expenses on the head tor taking the dead body of the deceased to the hospital, for post mortem and returning back to the village. Thus, the total compensation payable was arrived at Rs. 3.24,000/ -. The Tribunal also found that the vehicle had a valid policy of insurance with the present appellant and the driver of the offending vehicle had a valid driving licence. Therefore, the Tribunal directed the appellant to indemnify the owner. In this appeal the insurer challenges the award on the ground that there was contributory negligence on the part of the deceased, and the multiplier adopted by the Tribunal is on the higher side so also the monthly contribution assessed by the Tribunal. The questions so raised in this appeal by the Insurance Company are in relation to negligence and quantum. Law is well settled in this regard and the reference in this context is made to the decision reported in (1998) 3 SCC 140 (Shankarayya and Anr. v. United India Insurance Co. Ltd, and another) wherein it has been observed by the Supreme Court that unless the Insurance Company is permitted to contest a proceeding on merit in accordance with the provisions contained in Section 170 of the Motor Vehicles Act. 1988 (in short, the 'Act'), it has got no right to defend the proceeding by challenging the question of negligence or quantum and the appeal at its instance cannot be entertained. This is a case where admittedly no permission to contest the proceeding on merit has been granted in accordance with the provisions contained in Section 170 of the Act. The order sheet does not indicate that the Insurance Company has expressly been permitted to contest the proceeding on merit. That apart, the quantum so fixed cannot be said to be higher or illegal, as the deceased was working in Forest Corporation and was 32 years of age at the time of death. Considering this aspect and considering the above position of law so enunciated by the apex Court which has been relied upon by this Court in 1999 (II) OLR 159, I do not find any merit in this appeal. The order of the Tribunal is valid and correct. Accordingly, the appeal is dismissed.