NATIONAL INSURANCE COMPANY Vs. KASTOORI DEVI

JUDGEMENT

(1.) ALL the above appeals are directed against the same judgment of the learned Single Judge dated February 27, 1985, a such they are disposed of by one single order.

(2.) BRIEF facts of the case are that a motorcycle No. DHT 2547 driven by Arvind Kumar met with an accident with Truck No. RJA 2936 driven by Ram Karan and owned by Ismail and Madan Lai on October 10, 1977 at 10 am. near Mahuwa Bus -stand. Prem Prakash, Ashok Kumar and Anand Kumar were pillion riders of the motor -cycle. In this accident Prem Prakash, Arvind Kumar and Ashok Kumar died on the spot after falling from motor -cycle. The truck was insured with M/s. United India Fire and General Insurance Company and the motor -cycle was insured with National Insurance Company. Three Claim Petition Nos. 28/78, 35/78 and 36/78 were filed by the respective legal representatives of deceased Arvind Kumar, Ashok Kumar and Prem Prakash. Since all the claims related to one accident, the three claims were consolidated and one set of witnesses was examined by the trial Court. A consolidated judgment was given by the Tribunal on January 31, 1983, dismissing all the three claim petitions on the ground that no such accident happened with the truck and the claimants failed to prove that there was any collision between the truck and the motor -cycle. Three appeal No. 90/83, 124/83 and 125/83 were filed by the claimants of all the three deceased. Learned Single Judge set aside the findings of the tribunal and held that the accident of the motor -cycle had taken place on account of collision of the truck in question. Learned Single Judge thus allowed the appeals and also held that there was negligence of the driver of the truck primarily and since the driver of the motor -cycle took four persons, it was the case of composite negligence. It was held that in case of composite negligence compensation can be realised by the claimants from anyone of the two and it is not necessary to apportion the liability. Learned Single Judge in the case of deceased Ashok Kumar allowed Rs 60,000/ - in the case of Arvind Kumar, Rs. 30,000/ - and in the case of Prem Prakash Rs. 24,000/ -, to their legal representatives respectively. It was also held by the learned single Judge that liability in each case of the United Insurance Company would be limited to Rs. 50,000/ - but the liability of the National Insurance Company in the cases where it his been made liable, would be unlimited. It was also held by the learned Single Judge that in Arvind Kumar's case National Insurance Company was not a party in the claim petition as such the liability would be only of United India Fire and General Insurance Company in addition to that of driver Ram Karan and owner Ismail. It was also held by the learned Single Judge that under the Law of Torts nothing has been shown that the compensation could have been claimed by the claimants from the legal representatives of deceased Arvind Kumar, who was driving the motor -cycle but died in the same accident. The legal representatives of deceased Arvind Kumar thus could not be made liable for the compensation. Aggrieved against the judgment of the learned Single Judge 8 special appeals were filed. Special Appeals Nos. 90, 91 and 92 of 1985 have been filed by the United Insurance Company. Special Appeals Nos. 82/85 and 1/86 have been filed by the National Insurance Company and Special Appeals No. 7/86, 9/86 and 34/86 have been filed by Ram Karan and Ismail Driver and Owner of the truck in question. Cross -objections have also been filed by the claimants and legal representatives of all the deceased.

(3.) IT was also submitted by Mr. Bhargava, that the United India Insurance Company has been unnecessarily put to heavy burden of huge interest. Copy of the judgment had been supplied to the appellant in the first week of October, 1985 and as such the making of any payment within three months failing which awarding interest at the rate of 12 per cent on the amount awarded cannot arise in the present case.