NEW INDIA ASSURANCE COMPANY LTD Vs. RAMESH

JUDGEMENT

(1.) By this order, I shall dispose of four FAOs i.e. FAO-4498- 2012, FAO-4499-2012 and FAO-4500-2012 filed on behalf of New India Assurance Company Ltd. and , FAO-1657-2013 filed on behalf of claimants of MACT Case No.138 of 2011, which have arisen out of the same accident. Briefly stated, the facts of the case are that on 14/2/2011 at about 4:30 a.m., Rajesh alias Raja and Jitender @ Kala, both of them since dead along with Kuldeep were going to Palwal from Narwana in Alto Car bearing registration No.HR-32-B-7788 being driven by Ankur; that when the car had crossed Jind city and was in the area of near bus stand of village Bishanpura, a Mahindra Xylo vehicle bearing registration No.PB-29K-0915 (hereinafter referred to as the offending vehicle) being driven by respondent No.1 Satpal in a rash and negligent manner came from the opposite side; that Ankur took the Alto car on right hand side in order to avoid the accident but the offending vehicle struck the Alto car in the middle, as a result all the occupants of the Alto car suffered grievous injuries; that after the mishap, the respondent No.1 - Satpal ran away from the spot, however, several people had gathered there and they took out the injured from the ill-fated vehicle; in the meanwhile a police PCR reached there; that all the injured were taken to General Hospital, Jind and after being provided first aid there, keeping in view the serious condition of the injured, they were referred to PGI, Rohtak, however, they were taken to Jindal Hospital, Hisar; that unfortunately injured Rajesh @ Raja and Jitender @ Kala succumbed to their injuries on the way to Jindal Hospital, Hisar; that their family members brought their deadbodies to Narwana and cremated them there without getting the post-mortem examination conducted; that formal FIR No.36 dtd. 19/2/2011 for the offences under Ss. 279, 338 and 304-A IPC was registered at Police Station Sadar, Jind with regard to the accident. Smt.Sudesh Devi - widow, Master Deepansu - son and Smt.Shanti Devi - mother of deceased Rajesh @ Raja had brought a claim petition bearing MACT Case No.138 of 2011 against respondents i.e. Satpal - driver-cum-owner and United India Insurance Company through its Branch Manager, Jind Branch - insurer of the offending vehicle, claiming compensation to the tune of Rs.20.00 lacs on account of death of Rajesh @ Raja in the motor vehicular accident, contending that deceased Rajesh @ Raja was aged about 25 years; that he was working as agriculturist and dairy farmer, earning Rs.15,000.00 per month and he was also preparing for B.A. Examination; that he was sole bread winner of the family. Sh.Ramesh @ Rameshwar and Smt.Roshni Devi, parents of deceased Jitender @ Kala had brought a claim petition bearing MACT Case No.156 of 2011 against the above-said respondents, claiming compensation to the tune of Rs.10.00 lacs on account of death of Jitender @ Kala in the motor vehicular accident contending that their deceased son Jitender @ Kala was aged about 25 years; that he was working as a driver and earning Rs.4,500.00 per month; that the claimants were dependents upon his earnings. Sh.Ankur had brought a claim petition bearing MACT Case No.203 of 2011 against the above-said respondents and also against respondent No.3 - Ved Parkash - owner and respondent No.4 - New India Assurance Company Ltd. - insurer of Alto car bearing registration No.HR-32-B-7788, claiming compensation to the tune of Rs.10.00 lacs on account of injuries suffered by him in the motor vehicular accident by contending he was earning Rs.15,000.00 per month from his private business and due to suffering injuries in the accident, he remained admitted as indoor patient in Jindal Hospital, Hisar from 14/2/2011 upto 19/2/2011; that he was operated upon there and a sum of Rs.1.00 lac was spent on his treatment till date and since he is not fully cured, he is getting further treatment spending money; that he has become disabled to do any work; that he was the only bread earner of the family. Sh.Kuldeep had brought a claim petition bearing MACT Case No.207 of 2011 against the respondents as mentioned in MACT Case No.203 of 2011, claiming compensation to the tune of Rs.20.00 lacs on account of injuries suffered by him in the motor vehicular accident contending that he has been a practising Advocate at Narwana, earning Rs.50,000.00 per month; that due to suffering of injuries in the road side accident, he was admitted as indoor patient in Jindal Hospital, Hisar from 14/2/2011 upto 2/3/2011 and underwent surgery there; that a sum of Rs.3.00 lacs were spent on his treatment till date; that since he has not been fully cured, he is still getting treatment facing great physical hardship; that he has become disabled due to suffering injuries in the mishap and is unable to do practice.

(2.) Since all the four claim petitions arose out of the same accident, those were tried together and disposed of vide a single Award dtd. 5/4/2012 passed by Motor Accidents Claims Tribunal, Jind. On notice, the respondents put in appearance. Initially respondent No.3 had appeared in two connected claim petitions through counsel but later on such counsel absented and there was no other representation on behalf of such respondent No.3, as such was proceeded against ex parte. Respondents No.1, 2 and 4 had however offered contest to the claim petitions. Respondent No.1 in the written statements filed in all the cases offer denial to the assertions in the claim petitions stating that no such accident had ever taken place with the vehicle in question and that driver of the Alto car was driving it in a rash and negligent manner and as such was responsible for the mishap; that the car had hit some unknown vehicle; that the FIR was lodged after delay of five days wrongly roping the offending vehicle in question; nevertheless this vehicle was insured with respondent No.2 and he was having a valid and effective licence at the time of alleged accident, therefore, the compensation, if any, is to be paid by the insurance company. Such respondent took up various legal objections in the written statements filed while craving for dismissal of the claim petitions. Respondent No.2 in the written statements also denied involvement of the offending vehicle in question in the accident stating that the accident, if any, had taken place due to sole fault of Alto car driver Ankur or in the alternative, it was a case of contributory negligence, therefore since drivers of both the vehicles were not holding any valid and effective driving licence at the time of accident and the vehicles were being plied in violation of terms and conditions of the insurance policy. Such respondent also craved for dismissal of the claim petitions. Respondent No.4 - insurance company of Alto Car in two petitions took up a plea that accident took place due to rash and negligent driving of offending vehicle by respondent No.1; that there was an inordinate and unexplained delay of five days in lodging the FIR creating a doubt in the mind about truthfulness of allegations. According to the answering respondent, it was not liable to pay any compensation since the driver of the car was not having a valid and effective driving licence and it was being plied in violation of the terms and conditions of the insurance policy; that the claim petitions were bad for non-joinder of necessary parties since Alto car was not the offending vehicle, therefore answering respondent was unnecessary party. Such respondent also prayed for dismissal of the claim petitions.

(3.) On the pleadings of the parties, following consolidated issues were framed :-