UNITED INDIA INSURANCE CO LTD Vs. SODARI DEVI

JUDGEMENT

(1.) This misc. appeal has been filed by the appellant United India Insurance Co, Ltd. (for short 'insurance company') against the judgment and award dated 27.8.1996 passed by the learned Judge, Motor Accidents Claims Tribunal, Bhilwara, by which he passed an award of Rs. 1,73,200 in favour of the claimant- respondent Nos. 1 and 2, who are LRs. of deceased Kela Ram, along with interest at the rate of 12 per cent per annum. In this appeal, the claimant-respondent Nos. 1 and 2 have also filed the cross- objections on 2.4.1997 and the same would be considered at appropriate place.

(2.) It arises in the following circumstances: On 27.7.1993 at about 6 p.m., Kela Ram (hereinafter referred to as 'the deceased') aged about 43 years sat along with his goods in mini truck No. RJ 06-G 459 and was going towards village, Ghati-Ka-Bada and that truck was being driven by one Heera Lal (respondent No. 3 in this appeal) and the owner of that truck was Vijay Kumar (respondent No. 4 in this appeal) and when the truck in question reached near the village Amarwasi, it capsized, as a result of which, the deceased Kela Ram received grievous as well as simple injuries and he succumbed to his injuries on 28.7.1993 in Mahatma Gandhi Hospital, Bhilwara. Thereafter, claimant-respondent Nos. 1 and 2, whq are legal representatives of deceased Kela Ram, filed a claim petition before Motor Accidents Claims Tribunal, Bhilwara (hereinafter referred to as 'the Claims Tribunal') on 18.9.1993 and claimed a sum of Rs. 25,77,000 as compensation on account of death of deceased. A reply to the claim petition was filed by the appellant insurance company as well as the respondent No. 4 Vijay Kumar, owner of the truck in question and it was pleaded by them that since the deceased was gratuitous passenger, therefore, appellant insurance company as well as owner were not liable to pay compensation to the claimant-respondent Nos. 1 and 2. Hence, the claim petition filed by the claimant- respondent Nos. 1 and 2 be dismissed. Thereafter, the Claims Tribunal framed the following five issues on 6.12.1994: (Omitted as in vernacular) Thereafter, both parties led evidence in support of their respective cases. After hearing both the parties and after considering the entire evidence and material available on record, the learned Claims Tribunal through the judgment and award dated 27.8.1996 decided the issue Nos. 1 and 3 in favour of the claimant-respondent Nos. 1 and 2 holding inter alia:

(3.) In this appeal, the following submissions have been made by the learned counsel appearing for the appellant insurance company: