NATIONAL INSURANCE CO LTD Vs. TULSI DEVI

JUDGEMENT

(1.) These two appeals arise out of the same award dt. Aug. 24, 1985 passed by the Motor Accident Claims Tribunal, Jaipur, therefore, they are decided by this one judgement.

(2.) It will suffice for the purposes of these appeals to state that on May 29, 1978, the claimants-respondents 1 to 3 filed a claim petition for sum of Rs. 9,10,000/- against the appellant and the respondents Nos. 4 to 7, before the Motor Accident Claims Tribunal, Jaipur. On Dec. 27, 1977 at about 3.00 p.m. deceased Uma Shanker, deceased Kumari Meghna along with Smt. Tulsi Devi one of the claimants, were going to Ludhiana from Jaipur Via Delhi in a Ambassador Car No. WMC 7749 of M/s. Gold Spot Agencies. The car was driven by deceased Girdhari Lal. When the car reached near Chandwaji village, a truck bearing No. HRR 8215 driven by Madanlal, respondent 2 dashed against the car which resulted in death of the above 5 persons. The Tribunal, after recording evidence and hearing all the parties, passed an award for the amount mentioned above and appellant and respondents Nos. 3, 4 and 5 to be liable for payment of compensation amount jointly and severally.

(3.) The contention of Shri B.P. Gupta, learned counsel for the appellant National Insurance Company is that in the claim petitions, it was mentioned by the claimants that the accident took place on account of rash and negligent driving of the truck by driver Madan Lal. It is, therefore, submitted that no liability could be fixed on the appellant company with which the car was insured for the simple reason that no rash or negligent driving on the part of the deceased driver of the car was alleged in the petition. It is given out that the appellant-company was permitted to cross-examine the witnesses produced on behalf of the claimants, which shows that it was allowed to participate by the Tribunal on defence outside the scope of S.96(2) of the Motor Vehicles Act, 1939 (hereinafter called as "the Act"). It is stated that the driver of the car expired in the accident and the owner of the car did not appear in spite of the notice given by the Tribunal. It is further contended by the learned counsel that under the amended provisions of S.110-C(2-A) of the Act, the Tribunal has been empowered to allow the insurer who may be liable in respect of such claims to be impleaded as party to the proceedings and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been filed, provided the Tribunal after enquiry is satisfied that there is collusion between the person making claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the claim. It is, therefore, submitted that keeping in view the above provision of the Act, the Tribunal allowed the appellant, Insurance Company to cross-examine the witnesses of the claimants on all grounds which are usually available to a person against whom the claim is filed. It is submitted by the learned counsel that subsequently the claim petition was amended and it was pleaded in the amended claim petition that the accident was result of composite negligence by drivers of both the vehicles. It is also contended that since the occupants of the car who died, were travelling in the borrowed car, therefore, the Insurance Company is not liable for payment of any compensation as awarded by the Tribunal. It is, therefore, contended that even if it is held that the accident was result of composite negligence of drivers of both the vehicles, the driver of the truck should have been placed with greater liability as the accident resulted on account of negligence of the driver of the truck. Therefore, the Tribunal has erred in keeping the negligence of driver Girdhari of the Car at 50% in the claim filed by Mst. Shanti Devi and others, the legal representatives of the driver of the Car, Girdhari Lal. Reliance has been placed on Venguard Insurance Company Ltd. v. Raghunath Patra, 1976 Acc CJ 12 (Orissa) in which it was held that when insurer does not contest the claim before the Tribunal and the claimants did not raise any objection at the time when the insurer cross-examines, the claimant's witnesses on the question of damages and the appeal has been filed by the Insurance Company alone against the award, the appellant Insurance Company can take the pleas on merits.