NEW INDIA ASSURANCE CO LTD Vs. KHETA RAM

JUDGEMENT

(1.) There are two sets of appeals against the award of the Motor Accidents Claims Tribunal, Phalodi dated 19.4.1996. One set of the appeals on behalf of the New India Assurance Co. Ltd. and another set of the appeals are from National Insurance Co. Ltd.

(2.) It is alleged that on 7.7.1990 accident took place at Bhap-Phalodi Road. Some passengers were travelling in the jeep No. RJ 19-T 1079, which was being driven by Hakim Khan alias Abdul Hamid. It is alleged that driver of the truck No. RJ 07-G 0034 came rashly and negligently and hit the jeep causing accident resulting into death of six persons and injuries to several other persons. The claimants preferred claims against the driver, owner and insurance companies of both the vehicles. All the claim petitions were consolidated after framing issues. The point for determination before the Tribunal was whether there was any negligence of the driver of the truck in causing accident whereas in some of the claim petitions issue was whether there was negligence of the drivers of both the vehicles. Meaning thereby the point for determination before the Tribunal was whether it was a fault of the driver of one vehicle or whether the accident occurred due to the fault of both the drivers. The trial court after recording evidence held that there was negligence of drivers of both the vehicles and both are liable equally in the claim petitions of the claimants and it was held by the Tribunal that due to accident Deendayal died, Pannaram suffered injuries, Parmaram also suffered injuries whereas Babulal died and in Claim Case No. 5 it was held that due to accident jeep of the applicant was damaged. It was also found that Manaram and Mohanlal also died in the accident.

(3.) The New India Assurance Co. Ltd. by preferring appeals challenged the finding of the Tribunal, firstly, on the ground that Tribunal has committed illegality in holding that insurance company is liable for the entire amount of the claim. According to learned counsel for the appellant, the insurance policy was issued by the appellant insurance company on 28.7.1989 and premium charged for insurance was as per the tariff, which was applicable before its revision. The accident occurred on 7.7.90. According to learned counsel for the appellant tariff was changed after coming into force of the Motor Vehicles Act, 1988. The insured was not charged with new tariff, which was fixed after coming into force of new Motor Vehicles Rules, therefore, the appellant and the insured are governed by the terms and conditions and the restrictions mentioned in the insurance policy and not by the provisions of amended law. The insurance company has not charged any additional premium for making the policy for unlimited liability for the persons travelling in the jeep. It is also submitted that the persons who were permitted to travel in the jeep were also only entitled for the amount up to the extent of Rs. 15,000. Therefore, the Tribunal committed illegality in holding the appellant liable for the entire award amount. The learned counsel for the appellant further submitted that this is a case of negligence of the driver of the truck and, therefore, the appellant company is not liable for the award amount and in alternative there was a contributory negligence of the driver of the truck also. Therefore, looking to the category of both the vehicles, the liability of the truck is required to be fixed at least 75 per cent and the appellant can be liable up to the extent of 25 per cent of the liability only.