ORIENTAL INSURANCE COMPANY LTD Vs. RANI DEVI

JUDGEMENT

(1.) THIS Miscellaneous Appeal has been preferred by the appellant -Oriental Insurance Company Limited through Branch Manager, Branch Office, Ara against the judgment dated 16.3.2000 passed in Claim Case No. 5 of 1996 by Sri Braj Kishre Prasad Gupta, 3rd Additional Motor Vehicles Claim Tribunal, Buxar whereby he has been pleased to award compensation at Rs. 2,13,500/ - to the claimants -respondent nos. 1 to 5.

(2.) DURING the course of argument, the learned Advocate of the appellant raised preliminary objection regarding, the legality of the award passed against the Insurance Company in the absence of any award against the owner of the offending vehicle and in the absence of owner of the vehicle who was not impleaded as party in the claim application. He submitted that the judgment will show that the learned Tribunal did not fix any liability on the owner of the vehicle and without fixing the liability on the owner of the vehicle, the Tribunal directed the Oriental Insurance Company Limited to satisfy the award which is not permissible under law. In support of his argument, the learned Advocate of the appellant -Insurance Company has placed reliance upon the decisions reported in 1982 A.C.J. Page 211 (Oriental Fire & General Insurance Co. Ltd. appellant Vs. Bachan Singh and others, respondents) and on the decision reported in (1998)9 Supreme Court Cases 202 (Narendra Kumar and another, appellants Vs. Yarenissa and others, respondents).

(3.) AS regards the submission of the learned Advocate of the appellant that in the absence of the finding that the driver was driving the offending vehicle rashly and negligently, the claim application under Sec. 166 of the M.V. Act cannot be allowed, I am of the view that this principle cannot be applied in each and every case as there may be cases in which the driver will not be at fault and the accident may occur due to mechanical defect in the vehicle or due to some unavoidable circumstances beyond the control of driver so in such cases compensation can be awarded under the provision of Sec. 166 of the M.V. Act without proof of rash and negligent act of the driver of the offending vehicle. In this regard I rely upon the decision reported in (2003)6 Supreme Court Cases 420 (Jitendra Kumar, appellant Vs. Oriental Insurance Co. Ltd. and another, respondents). In the instant case also the driver of the offending bus was overpowered by some greedy elements who took control of the steering due to which the accident took place, as such even if it is not established that the accident was caused due to rash and negligent driving of the driver of the offending vehicle, the Insurance Company is bound to pay the compensation if the offending vehicle is insured. Under the circumstances mentioned above, I reject the argument of the learned Advocate of the appellant -Insurance Company on this point.