SUMAN TALWAR Vs. RAKESH KUMAR

JUDGEMENT

(1.) The appellant Mrs. Suman Talwar is legal representative and daughter of original appellant Smt, Tripta Sood, who has filed this appeal against the award dated 31.12.1985, passed by Motor Accident Claims Tribunal, Kangra Division at Dharamshala, praying for enhancement of the compensation amount. By the impugned award Smt, Tripta Devi Sood was awarded an amount of Rs. 3,03,000/ - (Rupees three lacs and three thousand) as compensation for die death of her son Rajiv Kumar, out of which Rs. 1,50,000/ - was held to be payable by respondent No. 3 - Insurance Company whereas respondents No. 1 and 2, who are owner and driver of the truck in question were held to be liable to pay the balance award amount. Cost of Rs. 1000/ - has also been awarded against the respondents. Respondent No. 1 Rakesh Kumar, has also preferred Cross -objections No, 109 of 1986 challenging the impugned award which will also be decided by this judgment.

(2.) The brief facts of the case are that Smt. Tripta Devi Sood filed claim petition demanding compensation to the tune of Rs. 20 lacs for the death of her son Rajiv Kumar in an accident which took place on 21.1.1982 at 9 pm at Shahpur on Pathankot - Shahpur road due to rash and negligent driving of truck No. HPB -1004 by its driver Satish Singh -respondent No.2 and for which owner of the said truck Rakesh Kumar respondent No.l was vicariously liable. It was stated in the claim petition that at the time of accident deceased Rajiv Kumar was working as 2nd Officer in Wallen Ship Management Ltd. at Hong -Kong at monthly salary of Rs. 1114.00 U.S. Dollars -equivalent to Rs. 10,026.00 approximately, which was not subject to income tax. It is further stated that on the day of accident deceased Rajiv Kumar was coming from Pathankot to Dharamshala on his motorcycle No. HPK -1669 accompanied by Virender Kumar Arora (PW -1), who was sitting on the pillion seat. At about 9.15 pm when they reached Shahpur, truck in question, which was being driven rashly, negligent and at a very fast speed by Satish Singh -respondent No, 2, was coming from apposite direction i.e. from Pathankot to Dharamshala and struck against the motorcycle by losing its control while crossing an oil Tanker No, PUG -7347, which was parked on the right side of the road. At that time motorcycle was being driven at its correct side i.e. at extreme left of the road, Both deceased Rajiv Kumar and Virender Kumar Arora (PW -1) had become unconscious as a result of accident and they were removed to Primary Health Centre, Shahpur by Des Raj, the co -driver of the truck. Virender Kumar (PW -1) had received only minor juries, as such, he was discharged after giving him first aid whereas Rajiv Kumar being in serious condition was referred to Civil Hospital, Dharamshala and thereafter to Post Graduate Institute, Chandigarh but he succumbed to his injuries on the way on 22.1.1982, Autopsy was conducted by Dr. Ashok Gupta (PW -9), Medical Officer, General Hospital, Scctor -16, Chandigarh.

(3.) Respondents filed separate written statements but defence taken by them is common denying all the allegations made in the claim petition and alleging that deceased Rajiv Kumar was drunk and was driving motorcycle rashly, negligently and at a fast speed as a result of which he lost his control and struck against the stationary truck in front of building of Shri Kul Parkash. It is further stated in the written statement of Satish Singh, respondent -2, that while he was crossing the oil tanker No. PUG - 7347 parked on the road he noticed a motorcycle coming from the opposite direction at a very fast speed, therefore, he applied the brakes and stopped his truck. There was sufficient road on the right side of the truck for passing the motorcycle but deceased Rajiv Kumar was drunk and driving his motorcycle rashly, negligently and at a very high speed, as such, he struck his motorcycle rashly, negligently and at a very high speed, as such, he struck his motorcycle against the truck by breaking the front right headlight of the truck and fell down on the road along with his , companion Virender Kumar Arora (PW -1). It is also stated that had deceased Rajiv Kumar not taken the liquor while driving his motorcycle the accident would not have occurred. Insurance Company -respondent No. 3 has stated that the amount claimed was very excessive and their liability was limited as per the terms of the Insurance Policy No. 42103/ -24/1/01140/81, a true copy whereof was filed with the written statement.