NEW INDIA ASSURANCE CO LTD Vs. SULOCHANA BEWA

JUDGEMENT

(1.) The aforesaid appeals (except Misc. Appeal No. 241 of 1991 filed by the claimants) have been filed by the Insurance Company challenging a common judgment of the Second Motor Accident Claims Tribunal, Cuttack, by which it has disposed of seven claim petitions. As all the appeals are analogous and arise out of the same judgment, they were heard together and are disposed of by this judgment.

(2.) The common case of the claimants is that on 7-1-1987 at about 6 p.m. the offending truck bearing registration number OSU 2478 belonging to Harmohan Das who is one of the respondents and insured with the appellant was coming in high speed from Paradeep towards Chandikhole. At Hazari Chhak on the Paradeep-Chandikhole Express High Way the said truck suddenly swerved to its left and then capsized. On account of this accident which was due to rash and negligent driving of the driver of the truck, the helper Birabar Behera, a pedestrian Misra Abid Baig died due to the injuries sustained by them and other five claimants who were travelling in the truck (four of them as owners of goods and fifth one as a coolie) got bodily injuries on their persons. On consideration of evidence on record, the Tribunal held that the accident took place due to the rash and negligent driving of the driver of the offending truck resulting in the death of two persons and injuries to other claimants. The Tribunal then considered each of the claims made by the claimants and granted compensation, the details of which are as follows :

(3.) Shri R. N. Mohanty, learned counsel appearing for some of the claimant-respondents, relying on the decision of a Division Bench of Karnataka High Court in New India Assurance Co. Ltd. v. Mahadev Jatta Naik, 1992 (1) ACJ 100, and a decision of the Full Bench of the Madhya Pradesh High Court in Gaya Prasad v. Suresh Kumar, 1992 (2) ACJ 200 raised preliminary objection that the insurer having not deposited the necessary amount of the award as required in the fist proviso to sub-section (1) of Section 173 of the Motor Vehicles Act 1988 (hereinafter referred to as 'the New Act'), the appeals field by the insurer are not maintainable. Shri Roy, learned counsel appearing for the insurer-appellants, relying on a judgment of this Court in Oriental Insurance Co. Ltd. v. Parbati Mohanta, 1993 (1) ACJ 550 submitted that the vested right accrued to the appellant on the basis of the claim petitions which were made prior to the New Act came into force cannot be taken away and as such the appellant is not obliged to comply with the requirement of deposit of the necessary amount of the award.