NEW INDIA ASSURANCE COMPANYLTD Vs. MANJU DEVI

JUDGEMENT

(1.) This is an appeal by the insurer against the award of the Additional Claims Tribunal, Hazaribagh under Section 110-A of the Motor Vehicle Act whereby the Tribunal passed award for a sum of Rs. 1,40,000/-to pay the claim in favour of the claimants.

(2.) On 23.9.1987 a Transport Bus bearing Registration No. BPI 8921 started for Baloutta. The bus was full to capacity and many persons boarded at the roof of the bus also. The driver of the bus was behaving in a negligent manner, although he was warned by the passengers several times. At about 10 P.M. in the night, the vehicle started from Chauparan and after giving some distance, the driver took a turn in a very high speed. The persons occupying the roof were hit by the branches of the trees. Some person occupying the roof of the bus were thrown away while others sustained grievious injuries and died. The driver was also seriously injured. It was alleged that the deceased Maghu Singh, who was conductor of the bus, he was also thrown out from the bus when it took a turn. He was. aged about 25 years and getting salary of Rs. 1,000/- The learned Claim Tribunal accepted the case of the claimants and awarded compensation which has been assailed by the insurer. The Govt. Advocate appearing on behalf of the Insurance Company and submitted that in the facts and circumstances of the case, the Claim Tribunal erred in awarding compensation against the insurer for the reasons that the driver of the offending bus was guilty of violation of Motor Vehicle Act and in terms of the Insurance policy, the insurer is not liable. The liability shall be borne by the owner of the bus. The Tribunal has negative the defence set-up by the insurer-appellant.

(3.) The learned Tribunal has observed that according to the evidence, some passengers had forcibly boarded the roof of the bus but the Insurance Company failed to prove that this amounted to violation of the term and conditions of the licence. As, there is no provision in the Motor Vehicle Act or in the policy, the Tribunal held rightly that the insurer cannot escape from the liability. The Tribunal further held that the liability of the Insurance Company was not limited to 50,000/- only in terms of Section 95(2)(b) of the Motor Vehicle Act because the deceased was not a passenger. The Govt. Advocate submitted that the Tribunal awarded huge amount i.e. Rs. 1,40,000/- on a wrong calculation, contrary to the decision of the Hon'ble Supreme Court in 1994 ACJ 1 (Gen. Manager Kerla State Road Corporation).