NEW INDIA ASSURANCE CO LTD Vs. INDRA DEVI

JUDGEMENT

(1.) Heard learned counsel for appellant insurance company. This appeal has been filed by appellant insurance company against the judgment and award dated 28.2.2012 whereby the learned M.A.C.T., Hanumangarh while deciding the Claim Case No. 142 of 2010 has awarded compensation to the tune of Rs. 3,91,000 for the death of deceased Bhagwana Ram, who was the sole breadwinner of family of appellants-claimants, under section 163-A of the Motor Vehicles Act, 1988 (for short, hereinafter referred to as "the Act of 1988").

(2.) Briefly stated the facts of the case are that the sole breadwinner of the family of the appellants-claimants lost his life in an accident, which took place on 21.12.2009 at about 9 p.m. when the deceased Bhagwana Ram, driving Bolero jeep No. RJ 31-UA 0593, owned by the respondent No. 5 (Bachan Singh), coming from Rawatsar to Pallu. However, when the said Bolero jeep reached near Purabsar Bus Stand, suddenly a stray animal came in front of the jeep, and resultantly the driver of Bolero jeep lost control over the jeep and it collided with a truck (No. RJ 31-GA 3022) which was standing on the side of the road and sustained injuries. On account of injuries suffered the said Bhagwana Ram died. The claimants-appellants, who are the dependants of the deceased driver, filed claim petition before the learned Tribunal claiming compensation of Rs. 17,96,204 and the same was decided by learned Tribunal vide the judgment dated 28.2.2012 awarding compensation to the tune of Rs. 3,91,000 under section 163-A of the Act of 1988.

(3.) Mr. Jagdish Vyas, the learned counsel for the appellant insurance company, relying upon a Supreme Court decision in the case of National Insurance Co. Ltd. v. Sinitha, 2012 ACJ 1, submitted that even in the case (s) under section 163-A of the Act, since the driver of the vehicle himself was negligent in driving the vehicle, therefore, the claim cannot be reimbursed by the insurance company. He further submitted that F.I.R. No. 140 of 2009 with Police Station Pallu, was filed against the same driver but on account of death of driver, final report in negative was filed by the investigation agency. He also submitted that the claimants have failed to prove that accident did not happen on account of own negligence of the driver himself and, therefore, the learned Tribunal has not decided the question of negligence at all in the present case and consequently, the award deserves to be set aside.