NATIONAL INSURANCE CO. LTD. Vs. RAMESH KUMAR

JUDGEMENT

(1.) THE Motor Accidents Claims Tribunal, Solan, in Claim Petition No. 44 S/2 of 1989 has awarded the compensation amount of Rs. 1,66,500 in respect of the death of Mohan Lal and amount of Rs. 48,021 towards the loss of goods by judgment and order dated 24.8.1990 to the heirs of the deceased, who had expired on the night intervening 17/18.9.1988 in the accident. That order is challenged by the insurance company by filing this first appeal.

(2.) BRIEFLY stated, the facts giving rise to the present appeal are that; Mohan Lal, aged about 55 years, resident of Junga, Tehsil and District Shimla was travelling in truck bearing registration No. HPR 89 owned by Himachal Wholesale Syndicate, Parwanoo and Ram Murti and Ramesh Kumar were its partners. The truck was loaded with goods worth about Rs. 50,000 belonging to the deceased and the goods were being carried from Parwanoo to Junga. The said truck met with an accident near Barog on the intervening night between 17 and 18.9.1988 at about 12.30 hours resulting in the death of Mohan Lal and complete damage to his goods. The legal representatives of deceased Mohan Lal filed a claim petition alleging that the accident took place due to rash and negligent driving of the truck by its driver and they claimed compensation of Rs. 3,00,000 for the death of Mohan Lal and a sum of Rs. 1,00,000 due to loss of goods including profit. The claim petition was filed against respondent Nos. 6 and 7 being owners of the truck and insurance company appellant herein with whom the ill fated vehicle was insured.

(3.) APPELLANT insurance company while resisting the claim petition, pleaded that the deceased Mohan Lal at the relevant time was travelling in the truck as a gratuitous and unauthorised passenger and the truck had not carried the goods on the day of the accident. It was alleged that the risk of an unauthorised and gratuitous passenger was not covered under Sections 95 and 96 of the Motor Vehicles Act, 1939 (Act No. 4 of 1939). In the alternative, it was pleaded that the deceased was not a third party and, as such, no claim for compensation for loss of goods could be made against the appellant company. It was also pleaded that the driver of the truck had no valid licence and the truck was being plied without a route permit against the provisions of Act No. 4 of 1939. Appellant insurance company also alleged that the maximum liability of the company under Section 95 of Act No. 4 of 1939 and in terms of the policy was limited. The appellant company denied that the accident occurred due to rash and negligent driving of the vehicle by its driver. It was next stated that accident took place due to sudden and unavoidable mechanical defect.