NATIONAL INSURANCE CO LTD Vs. ABHAY SINGH YADAV

JUDGEMENT

(1.) The appellant insurance company, has challenged the award dated 15.10.2005 passed by Motor Accidents Claims Tribunal, Kotputli, District Jaipur (Rajasthan) whereby learned Claims Tribunal has awarded a compensation of Rs. 1,50,000 to the claimants, for the fatal injuries sustained by their son in a motor accident.

(2.) The brief facts of the case are that on 18.2.2001 Mintu, son of the claimants-respondent Nos. 1 and 2 was travelling in a jeep bearing registration No. RJ 14-C 6855 along with his family 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 the driver of the jeep did not see the parked truck, it collided with the truck. Resultantly, four persons died and others, like Mintu sustained fatal injuries. Since Mintu had suffered fatal injuries, the respondent Nos. 1 and 2 filed a claim petition before the learned Tribunal. The driver and 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 the learned Tribunal. Learned Tribunal passed a common award dated 15.10.2005. As stated above, the learned Tribunal directed that the claimants-respondent Nos. 1 and 2 should be paid Rs. 1,50,000 along with interest at the rate of 6 per cent per annum only. 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 the compensation. Secondly, since the respondent Nos. 1 and 2 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.