KAMLA DEVI Vs. RAJKIA COAL DEPOT

JUDGEMENT

(1.) This appeal arises out of the award dated 2.7.1988 passed by the Motor Accidents Claims Tribunal, Jaipur in M.A.C.T. Claim Case No. 76 of 1980 which was filed for compensation on account of the death of one Jagdish Prasad Sharma who died as a result of the injuries suffered by him in a motor accident which occurred on 21.1.1980. Learned Claims Tribunal awarded in all a compensation of Rs. 1,19,880. The appeal has been filed for enhancement of the compensation. However, the main plea of the appellant is that New India Assurance Co. Ltd., respondent No. 5, the insurer of the vehicle which was being driven by the deceased Jagdish Prasad Sharma and owned by Bheru Lal and Ratna Devi, respondent Nos. 4 and 4 (a), respectively, has been absolved by the learned Tribunal of its liability to pay the compensation contrary to the evidence on the record.

(2.) The submission of learned counsel for the appellants is that according to the policy of insurance, issued by New India Assurance Co. Ltd. which is admitted and is available at page 89 of the record of Tribunal, goes to show that in addition to the basic premium, additional premium was charged by the insurance company for coverage of the liability in respect of the driver. Therefore, the submission of the learned counsel is that in accordance with the aforesaid additional premium having been charged by the insurance company, the insurance company was liable to pay the compensation in respect of the death of driver who was driving the vehicle bearing registration No. RRL 1387 which had been insured by it and was belonging to the insured Bheru Lal and Ratna Devi, respondent Nos. 4 and 4 (a) respectively. In this view of the matter, the submission of the learned counsel for the appellants is that the learned Tribunal has erred in absolving the insurer of the vehicle.

(3.) In response to the aforesaid, learned counsel Mr. Bardhar, appearing on behalf of the insurance company has submitted that even assuming that risk in respect of the driver has been covered by the policy under the cover note dated 4.6.1979 which was valid up to 3.6.1980 by charging additional premium in respect of the driver vide receipt No. 106803 dated 4.6.1979, unless and until there was negligence on the part of the driver, the insurance company would not be liable. Further submission of the learned counsel for the insurance company is that appellant did not choose to file the claim under the Workmen's Compensation Act, 1923 before the Commissioner but instead have chosen to file the claim before Motor Accidents Claims Tribunal under the provisions of Motor Vehicles Act, 1939 and, consequently, even though the liability of the driver was covered under the policy, the insurance company is not liable to pay the compensation. In the alternative also it has also been submitted that in case New India Assurance Co. Ltd., respondent No. 5, would be held liable then liability may be fixed only to the extent of the liability as prescribed under the Workmen's Compensation Act, 1923.