NEW INDIA ASSURANCE COMPANY LTD. Vs. INDU BALA

JUDGEMENT

(1.) The Insurance Company has filed the instant appeal under Section 173 of the Motor Vehicles Act, 1988 questioning therein the award dated 4.8.2010 passed by learned Motor Accident Claims Tribunal, Bilaspur (H.P.) ( for short 'Tribunal') with a prayer that the same be either quashed and set -aside or in the alternative the Insurance Company be exonerated.

(2.) Briefly stated, facts of the case as alleged by the claimants are that Sh. Ashwani Kumar, husband of claimant/ respondent No.1 and father of claimant/respondent No.2 died in an accident which took place on 5.8.2007 at about 11.00 a.m. near village Kularu on NH -88 in District Bilaspur. Deceased was allegedly driving Swaraj Mazda tempo No. HP - 24A -1172, which met with an accident with TATA -1210 Truck No. HP -22 - 5912 owned by respondent No.3 and driven by respondent No.4. FIR was registered against the truck driver. Sh. Ashwani Kumar sustained injuries and breathed his last in hospital on the same day and it is his dependent who filed the claim petition.

(3.) The respondents No. 3 and 4 in their reply averred that truck No. HP -22 -5912 driven by respondent No.4 was going to Barnala. At the place of occurrence, there was a turn, the tempo driven by deceased was coming from opposite side, which was being driven in rash and negligent manner and to that side on the turn a tanker was standing. The deceased all of a sudden to over take the tanker, turned his tempo towards right side where the truck was going on opposite side and as such it struck with the truck due to negligence of tempo driver (i.e. deceased) and there was no fault of the truck driver. The insurance company took several defences in their reply, including the defence that the driver of the truck was not having valid and effective driving licence to drive the vehicle and there was violation of the terms of the policy and insurance company is not liable to pay any amount.