SMT. BHIKHI DEVI Vs. MOHAN RAM

JUDGEMENT

(1.) The instant appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") has been filed seeking enhancement of compensation awarded to the appellants vide judgment and award dated 28.01.2003 passed by Judge, Motor Accident Claims Tribunal-I, Jodhpur (for short, 'Tribunal' hereinafter) in Motor Accident Claim Case No.218/2000, whereby compensation to the tune of Rs. 6,28,000 with interest @9% per annum from the date of filing claim petition has been awarded in favour of the appellants holding the respondents jointly and severally liable for payment of compensation.

(2.) Facts of the case in brief are that the appellants, who were claimants in the aforementioned claim case, had filed a claim petition under Section 166 of the Act claiming compensation on account of the death of Gangaram, husband of appellant No.1, father of appellant Nos.2 to 4 and son of appellant No.5, in a motor accident which occurred on 19.11.1999, while he was riding his bicycle at about 09-10 o'clock in the night on the way from home to Banar Army Area. When he reached near Banar Railway crossing towards Jajiwal Kalan who is riding the bicycle in correct direction, one three-wheeler taxi bearing No.RNM 5011 driven by its driver rashly and negligently, came suddenly from Jajiwal Kalan side and dashed with the bicycle, as a result of which, Gangaram fell down from bicycle and sustained head injury. He was taken to Mathuradas Mathur Hospital, Jodhpur and got admitted in Neurosurgery Department, where he died on 20.11.1999 while undergoing treatment. Alleging that the accident occurred due to rash and negligent driving of the driver of three-wheeler taxi, claim petition was filed before the Tribunal, claiming a total compensation of Rs.29,86,000 under various heads.

(3.) Before the Tribunal, respondent No.1-driver and owner of the offending vehicle did not appear despite service, as such matter proceeded ex parte against him. Respondent No.2, the insurer of vehicle on filing an application under Section 170 of the Act, was permitted to defend the case. In the written statement filed by the insurance company, it denied most of the averments of claim petition and contended that it was negligence on the part of the deceased himself, due to which the accident took place. The respondent Insurance Company, thus, prayed for rejection of the claim petition.