BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED Vs. RAJNI TIWARI WIFE OF LATE JYOTI BHUSHAN TIWARI

JUDGEMENT

(1.) This appeal is directed against the order and award dated 8th of September, 2006 passed by the 1st Additional District Judge-cum-Claim Tribunal, Gopalganj in Motor Vehicle Case No. 5 of 2006/1 of 2006 whereby the claim of the claimant was allowed. However, while allowing the claim, the Tribunal directed the respondent Oriental Insurance Company to pay 60 per cent of the award and rest 40 per cent was to be payable by the appellant Insurance Company, i.e. United India Insurance Company Ltd. The short facts for disposal of the present appeal is that on 8th of March, 2006, at about 5 P.M. the husband of the claimant Rajni Tiwari and father of respondent nos. 2 to 4 were proceeding for some work from Jagi Road to Gauhati in a Maruti Car bearing Maruti Car No. AS-25C/2328 insured with the appellant United India Insurance Company Ltd. Unfortunately, the said Maruti Car was dashed by a Truck bearing Truck No. ML-07/8548 insured with the respondent Oriental insurance Company being driven rashly and negligently coming from the opposite direction causing accident to the Maruti Car leading to the spot death of the deceased Jyoti Bhushan Tiwari, husband of the Appellant No. 1. After completing the necessary formalities of the post mortem, the First Information Report was lodged vide Khetripur P.S. Case No. 32 of 2006 dated 9th of March, 2006. The claim application was filed before the Tribunal at Gopalganj since the claimants were resident within the district of Gopalganj. The claimant adduced evidence as eye witness who was occupant of the Maruti Car, was examined as AW-1, Arjun Dubey and also considering the other documents brought on the record, the Tribunal allowed the claim as per the order under the appeal, however directed that 60 per cent of the compensation awarded shall be payable by the respondent Oriental Insurance Company and rest 40 per cent to be payable by the United India Insurance Company, Ltd. with whom the Maruti Car in question was insured. The appellant Insurance Company on being aggrieved by such award directing the payment of 40 per cent has preferred this appeal.

(2.) Mr. Durgesh Kumar Singh, learned counsel for the appellant submits that the award directing the payment of 40 percent by the appellant Insurance Company has no legal justification for the simple reasons that the claim of the applicant was only against the respondent Oriental Insurance Company and not against the United India Insurance Company Ltd. Secondly, from the evidence brought on the record, it is clear that it was the offending truck who was being driven rashly and negligently with high speed and the driver of the Maruti Car having seen such driving of the truck, brought Maruti Car in the extreme left of the road in order to avoid dashing by the truck. However, since the truck in question was being, driven rashly and negligently, the driver of the truck lost control and dashed the Maruti Car even going to the extreme left of the Maruti Car. As such, there is absolutely no negligence whatsoever on the part of the driver of the Maruti Car. It is further submitted that merely the accident was head-on collusion, the negligence cannot be fastened on the driver of the Maruti Car and as such, in view of the pleading as also the evidence on the record, there could have been no award against the appellant United India Insurance Company Ltd. for payment of 40 per cent of the claim. It is further submitted that claim for recovery of the compensation amount, a certificate proceeding was initiated vide Certificate Case No. 101/2007-2008 before the Certificate Officer, Gopalganj and the interlocutory application filed by the appellant Insurance Company for stay, was rejected and as such, the appellant having no option had to pay the 40 per cent of the compensation amount with interest which was withdrawn by the claimant on furnishing the necessary security.

(3.) Learned counsel for the respondent nos. 1 to 4 submits that the security furnished by the claimant for receiving the money deserves to be released.