NATIONAL INSURANCE CO LTD Vs. SUNITA YADAV

JUDGEMENT

(1.) APPELLANT insurance company has challenged the award dated 15. 10. 2005 passed by the Motor Accidents claims Tribunal, Kotputli, District Jaipur (Rajasthan) whereby the learned Tribunal has awarded a compensation of Rs. 80,538 to Sunita Yadav, claimant, for the injuries sustained by her in an accident.

(2.) THE brief facts of the case are that on 18. 2. 2001 Sunita Yadav was travelling in a jeep bearing registration No. RJ 14-C 6855 along with other persons for attending a marriage. Around 7. 30 p. m. while the jeep was moving at a moderate speed, a truck bearing registration No. DL 1-GB 4299 was standing on the left side of the road outside a dhaba. Although it was night, the truck neither had any indicator nor any reflector on to let the drivers coming from behind know that the truck was parked on the road. Since driver of jeep did not see the parked truck, it collided with the truck. Resultantly, four persons died and others, like the respondent No. 1, sustained injuries. Since the respondent no. 1 had suffered injuries on her hand, head, feet and face, she filed the claim petition before the learned Tribunal. The driver and the owner of the truck did not appear before the learned Tribunal. Only the insurance company contested the claim petition. As mentioned above, a total of four persons had died and others sustained injuries. In all, six claim petitions were filed by different claimants before learned Tribunal. The learned Tribunal passed a common award dated 15. 10. 2005. As stated above, the learned Tribunal directed that the respondent No. 1 should be paid rs. 80,538 along with interest at the rate of 6 per cent per annum for the injuries sustained by her. Hence, this appeal by the appellant insurance company before us.

(3.) MR. Vizzy Agarwal, learned counsel for the appellant, has raised two contentions before us: firstly, that it is not a case of negligence solely on the part of the truck driver. According to the F. I. R. lodged immediately after the accident, the accident had occurred because of negligence of the jeep driver. In order to substantiate his arguments, the learned counsel for the appellant submitted a copy of the site plan showing the place of the occurrence. According to the learned counsel, the truck was parked on the correct side of the road and according to one of the witnesses, the parked truck was clearly visible. Since it is the jeep driver who collided with a stationary truck, clearly negligence of the jeep driver is made out. However, as the jeep driver had also expired in the same accident, eventually the police had submitted a negative final report. Hence, according to the learned counsel, it is a case of contributory negligence. Therefore, the insurance company of the truck cannot be held solely liable for the payment of compensation. Secondly, that since the respondent No. 1 had not arrayed the owner and the insurance company of the jeep as non-claimant respondents, the insurance company of the truck cannot be directed to pay the entire amount of the compensation.