NEW INDIA ASSURANCE COMPANY Vs. MOHINDER KAUR

JUDGEMENT

(1.) BRIEF facts of the case are that on September 2, 1969, Kulwant Singh (deceased) was going on scooter at about 2.30 p.m. from Moti Doongri Road towards Police Memorial in Jaipur City and as soon as he reached near Police Memorial one truck No. R.J.R. 2825 struck the scooter. On account of the accident Kulwant Singh fell down and received serious injuries. Kulwant Singh was admitted in SMS hospital and after remaining there for 26 days he succumbed to the injuries. Smt. Mahendra Kaur w/o Kulwant Singh and 7 daughters filed a claim petition on October 31, 1969 claiming a sum of Rs. 2 22,300/ -. It was alleged in the petition that Kulwant Singh was carrying on transport business and was earning Rs. 1,000/ - p.m. An amount of Rs. 200 has been spent by Kulwant Singh on himself and the rest used to be spent on the claimants. Shri Kulwant Singh at the time of accident was 45 years old.

(2.) THE claim petition was contested by Shri Shaukat -Ali owner of the truck, Amir Shah driver of the truck as well as by the Northern India Genegal Insurance Company Ltd., insurer of the truck. The tribunal framed the following issues on the basis of the pleadings of the parties:

(3.) I shall first deal with the appeal filed by the New India Assurance Co. Ltd., Jaipur. It was contended by Mr. Lodha, learned Counsel for the appellant, that the liability of the appellant was only upto Rs. 20,000/ -which was the maximum statutory liability at the relevant time. It was submitted that the tribunal wrongly drew an adverse presumption against the insurer for not producing the insurance policy. It was submitted that in the absence of producing the policy the liability of the insurer could not have exceeded more than the statutory liability as fixed under Section 95 of the Motor Vehicles Act, 1939. It was also submitted that in the year 1969 when the accident took place the policy was issued by Northern India General Insurance Co. Ltd. which later on merged in the appellant New India Assurance Co. Ltd. and the record of the policy was not available with the appellant and as such the same could not have been produced. Mr. Lodha in support of his contention placed reliance on Smt. Sampat Lal v. Smt. Geeta Devi and Ors. 1985 RLR 1052 and Automobile Transport Rajasthan v. Devi Lal 1976 WLN 783.