ORIENTAL INSURANCE CO LTD Vs. SHAMA DEVI

JUDGEMENT

(1.) APPELLANT is the insurer of the offending Motor Vehicle (Tata Tipper) bearing Registration No. 7179 JK02G owned by respondent no. 3 The short question for determination is whether the appellant insurance company can file the appeal against the award of the Motor Accident Claims Tribunal and get the quantum of compensation reduced when the insured has not filed the appeal and the appellant had not moved the Tribunal under Section 170 of the Motor Vehicles Act of 1988 (hereinafter to be referred as Act) forgetting the right to contest the proceedings on merits. It may be stated that respondent no. 1 filed claim petition no. 183/99 before the Motor Accident Claims Tribunal Jammu for the injuries suffered on account of motor vehicle accident of his daughter Shama Devi, aged three and half years. The accident occurred on 17 -6 -1997 at a place known as "Tali Morh, Miran Sahib, Jammu". The offending vehicle was being driven in a rash and negligent manner by respondent no. 2 from Jammu side towards R.S. Pura. The vehicle had served on the wrong side of the road and hit Shama Devi (claimant) who received severe injuries including a crushing wound on the left leg which caused it amputation in the hospital. The petition was filed through her father before the Tribunal though the owner and the driver were served, yet they did not appear and were proceeded exparte. Compensation in the amount of Rupees Twenty Lakhs was claimed under various heads. In its written statement, the appellant denied the accident. The liability to reimburse the insured was denied on the plea that a condition of the insurance policy had been violated as the driver at the time of the accident was not holding an effective driving licence. It was also pleaded that there was an option clause in the policy of insurance (policy no 2) which was enabling the insurer to take over the defence to contest claim petition in the name of insured (respondent no. 3).

(2.) ON the pleadings the following four issues were raised:

(3.) THE Tribunal decided issues no. 1 and 2 in favour of respondent no. 1. Issue no. 3 was decided against the appellant. While deciding issue no. 4 the Tribunal awarded an amount in the sum of rupees 3, 62.600/ - in favour of respondent no. 1 with 12% interest except on Rs. 30.000/ - being expenses of future operation and Rs. 57,600/ - being future loss of income from the date of filing of the claim petition till realisation. The compensation was awarded under ten different heads enumerated below: -