MISCELLANEOUS APPEAL Vs. MOSOMAT ASHA DEVI

JUDGEMENT

(1.) THE present appeal has been preferred under Section 173 of the Motor Vehicles Act,1988 (hereinafter referred to as the Act) against the judgment dated 14.5.2007 and award dated 30.5.2007 by the Fast Track Court No.IV, Madhubani (hereinafter referred to as the Tribunal). The Tribunal has directed the appellant/National Insurance Company Limited, which was insurer of offending vehicle i.e. Jeep bearing registration No.BR -32A -0041 to pay compensation amount of Rs.1,89,900/ - to the claimants/respondent nos.1 to 5 with simple interest at the rate of 6% per annum from the date of filing of the claim petition. Short fact of the case is that on 2.5.2002, while husband of respondent no.1 was traveling along with others in the offending Jeep at about 9.45 P. M. due to rash and negligent driving of the vehicle, the jeep turned turtle by the road side as a result of which the husband of respondent no.1, namely, Ganesh Das, who was sitting extreme right in the middle seat of the jeep got crushed beneath the jeep and died on the spot itself. Thereafter, an F.I.R. was lodged against the driver of the offending vehicle vide Madhubani Town P.S. Case No.115 of 2002 under Sections 279, 337 and 304(A) of the Indian Penal Code. In the first information report, the driver?s name was mentioned as Madan Mishra, son of Jogendra Mishra. However, during investigation, it was found that offending vehicle at the time of accident was being driven by respondent no.5, Pawan Kumar Jha, who was also owner of the said vehicle and thereafter, charge sheet was submitted against him. The claimants i.e. respondent no.1, wife of the deceased, respondent nos.2 to 4, son and daughters of the deceased jointly filed Claim Case vide MACT Case No.20 of 2002 under Section 166 of the M.V. Act in the court of Motor Accident Claims Tribunal/District Judge, Madhubani arraying the driver and owner of the offending vehicle as opposite party nos.1 and 2 and the appellant being insurer was impleaded as opposite party no.3.

(2.) IN the case, despite valid service of notice, the driver -cum -owner of the offending vehicle did not appear and as such the Claim Tribunal proceeded against him ex -parte. In the case, the insurer i.e. appellant appeared and filed a written statement objecting to the claim petition. The claimants besides producing documents examined altogether five witnesses and the claimants before the Tribunal fully established that the death of the deceased had occurred in a Motor Vehicle Accident due to rash and negligent driving of the offending vehicle. They also established regarding the income of the deceased and finally the Tribunal directed the insurer to pay the compensation amount to the claimants as indicated above.

(3.) AT the time of hearing, learned counsel for the appellant Shri Prakash Kumar has only raised the issue that in case of invalid driving license the insurer was not liable to pay compensation amount. It was argued that time without number, it has been held that in absence of valid driving license the insurer cannot be directed to pay compensation, but in such case, the owner of the offending vehicle is required to be directed to pay compensation.