NEW INDIA ASSURANCE CO LTD Vs. RAMA DEVI

JUDGEMENT

(1.) The above appeal has been filed under section 173 of the Motor Vehicles Act, 1988, against the award passed by Motor Accidents Claims Tribunal, Shimla, dated 7.8.1991 in MACC No. 1 l-S/2 of 1990, whereunder the Tribunal below has awarded a total compensation of Rs. 1,35,600 on account of the death of one Brij Lai, who died as a result of an accident, which occurred at 9.30 p.m. on 4.9.1989, involving the truck No. HYX 553 belonging to one Surender Pal insured with the appellant insurance company. The total compensation awarded was apportioned in the ratio of Rs. 80,000 in favour of the wife of the deceased, by name, Rama Devi and Rs. 55,600 in favour of the mother of the deceased, by name, Roop Dassi.

(2.) Respondent Nos. 1 and 2, the claimants before the Tribunal below, stated in their claim petition that the deceased Brij Lai, who was employed as a conductor with the truck No. HPS 2259 and earning Rs. 800 per month in addition to being paid Rs. 10 as diet money, travelled in the ill-fated truck No. HYX 553 carrying certain damaged parts of his truck No. HPS 2259 for repair/replacement by paying some amount for the transport of himself as also the spare parts from a place called Khegsu. The truck in which he was travelling was driven in a rash and negligent manner on account of which it had gone off the road and fell down in a nalla resulting in the death of Brij Lal. Consequently, the claim petition came to be made for a sum of Rs. 4,00,000. The deceased was said to be 20 years old when he died.

(3.) The owner of the vehicle, the respondent No. 1 before the Tribunal and the respondent No. 3 in this court remained ex parte and did not contest the claim before the Tribunal and it is only the insurance company, the appellant herein which contested the same. After trial and on a consideration of the materials placed on record, the Tribunal below held that the accident has occurred on account of the rash and negligent driving of the truck by its driver and the deceased died on account of the said accident, that the total loss of future income to the appellants was Rs. 1,29,600 and a further sum of Rs. 6,000 could be awarded for the loss of love and affection and mental shock, in all a compensation of Rs. 1,35,600 and that it was brought on evidence that the deceased was carrying damaged parts of the truck in which he was employed as a conductor on payment of Rs. 300 as fare and freight charges to the driver of the truck No. HYX 553 in question and, therefore, the deceased cannot be said to be an unauthorised or gratuitous passenger in the truck involved in the accident. Applying the ratio of a decision of this court in New India Assurance Co. Ltd. v. Usha Rani, 1990 ACJ 785 (HP), the appellant insurance company was held liable to pay the compensation awarded to the claimants. As to the question raised and the issue framed whether the truck in question was being driven in violation of the Motor Vehicles Rules, since neither any evidence was produced in respect of the same nor it was pursued and argued, it was held that the insurance company failed to prove such a claim. The Tribunal below also held that the deceased was not an unauthorised or gratuitous passenger and the insurance company failed to substantiate such a plea. Aggrieved, the insurance company has filed the above appeal.