NATIONAL INSURANCE COMPANY LTD Vs. SUKANTA KUMAR SAMAL

JUDGEMENT

(1.) THIS is an appeal by the insurer under Section 110 -D of the Motor Vehicles Act, 1939 (for short 'the Act').

(2.) ON 25 -11 -1979 near Kandarpur petrol pump an auto -rickshaw bearing registration No OSC 7231 faced with an accident resulting fatal injuries on the husband of the claimant No. 1. Widow and minor children filed an application under Section 110 -A of the Act asserting that the autorickshaw dashed against the deceased who was coming on the road resulting in his death. As seen from the petition, originally it was typed out that the deceased was coming in the auto -rickshaw which was corrected to be 'coming on the road'. A copy without correction was served on the insurer where the assertion was that the deceased was coming in the auto -rickshaw. In view of such assertion in the claim petition, the insurer filed its objection stating that its liability would only be confined to Rs. 15,000/ -and not more as the deceased was a passenger. The owner appeared on the same day as the insurer through the same Lawyer of the insurer. He did not file any written objection. The Tribunal on consideration of the evidence on record, came to the conclusion that the deceased was not a passenger in the auto -rickshaw which dashed against him causing the fatal injuries. In that view of the matter, the paltry amount of Rs. 30,000/ - claimed as compensation was awarded and the insurer was directed to pay the same.

(3.) MR . P. Roy, thereafter submitted that the evidence of P.W. 2 who claim to be an eye -witness does not inspire confidence. He submitted that the owner not having appeared, the scope of challenge by the insurer became a limited. If the owner would have appeared and examined the driver, who is the material witness, the fact would have been clear that the deceased was the occupant of the auto -rickshaw. Mr. Roy further urged that the owner ought to have taken steps for calling for the police records which would have fully corroborated the claim statement that the deceased was the occupant in the auto -rickshaw. Accordingly, the conduct of the owner is such that it would amount to collusion with the claimant just to shaddle the liability on the insurer and defeat the term in the policy that in case of a passenger in a vehicle the liability would be limited to Rs. 15,000/ - only.