NATIONAL INSURANCE CO Vs. DAKHI

JUDGEMENT

(1.) THE appeal No. 90/85 has been filed by the Insurance Company and the Appeal No. 97/85 has been filed by the owner of the vehicle under section 110-D, Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') against the award passed by the Motor Accident Claims Tribunal Bhilwara dated February 2, 1985 in MACT case No. 38/82. THE facts of the case giving rise to these appeals may be summarised thus. THE respondents No. 1 to 6 (in both the appeals) filed a petition under section 110-A of the Act for claiming compensation to the tune of Rs 1,10,000/- with the allegations, in short, that on September 25, 1975 at about 11. 30 a. m. bus bearing No. RSL 3301 was coming from village Kodimal to village Asind, it was being driven by its driver Mustaq (respondent No. 11) rashly and negligently, as a result thereof, it collided with Sobha Ram who was going on foot on his right side of the road and further collided with the wall of the agricultural field of Shri Mustaq Ahmed, Advocate. Sobharam was caught & carried at a distance of 15-20 ft. by the front portion of the bus. As a result of the injuries, he died on the spot. He was earning Rs. 12,000/- per year from the agriculture and was supporting the claimants. THE owners Nathulal, Shobhalal, Munnalal & Ganeshlal and the driver Mustaq admitted in their joint written statement that the bus was being driven by Mustaq & it was owned by Nathulal, Shobhalal, Ganeshlal & Munnalal and on September 25, 1975 it met with an accident at about 11. 30 am. THEy further averred that all of a sudden, the tie rod of the bus gave away for which neither the driver nor the owners of the vehicle were responsible. THE accident took place on account of Vis Major. THE Insurance Company admits in its written statement that the said bus No. RSL 3301 was insured by it in favour of the owners Nathulal, Shobhalal, Ganeshlal & Munnalal. It further also averred that the accident had already taken place before the vehicle was insured, the material fact about the accident was concealed and as such the Insurance Company is void and ineffective. After framing necessary issues & recording the evidence of the parties, the learned Tribunal held that the accident took place due to the rash and negligent act of the driver of the vehicle, Shobharam died on the spot as a result of the injuries received by him in the accident, the claimants are entitled to get Rs. 64,000/- as compensation, the insurance company is also liable to pay the amount and accordingly passed the award which has been challenged in the these appeals.

(2.) IT has been contended by the learned counsel for the Insurance Company that the accident took place at about 11. 30 A. M. on September 25, 1975 and the bus No. RSL 3301 was insured at 3 P. M. on 25 9. 75 as is proved from the cover note Ex. A/1 and certificate of insurance, paper No. C32/4, and the statement of Insurance Inspector, Shri K. C Taparia NA. W. 5. He further contended that Shri K. C. Taparia N. A. W. 5. has clearly stated on oath that the owners of the vehicle did not disclose about the accident otherwise he would not have insured the bus. He also contended that the insurance policy was void on the ground of suppression of material fact regarding prior accident. He further contended that admittedly, the bus was not insured at the time of the accident and as such the insurance company cannot be held liable for the payment of compensation. He lastly contended that the learned Tribunal seriously erred to bold the insurance company liable to the extent of the full amount of compensation as it could be liable to the extent of Rs. 50,000/- as provided under Section 95 (2) of the Act.

(3.) THERE is no force in the contention of the learned counsel for the owners and the driver of the bus that the accident took place due to the sudden failure of the tie rod which could not be detected despite taking reasonable care & caution. The owner Nathu Lal N. A, W. 1 has deposed that he had instructed the driver to check the oil, nut and bolt every morning & evening before starting the bus. Similarly, driver Mustaq N. A. W. 2 has disclosed in his statement that he had instructions to check the bus for one hour every morning and evening and he duly checked the bus before driving it on the date of the accident. In the cross-examination, Nathulal N. A. W. 1 admits that these facts have not been pleaded in the written statement. It is well settled law that no amount of evidence can be looked into upon a plea which has not been put forward. Thus the position is that there is no pleading and proof to the effect that the bus was being properly checked and maintained. The M. T. O. , Bhilwara, Kundanlal N. A. W. 3 has deposed that on examination of the bus, he found that as a result of the slipping of the ring of the tie rod, its bolt gave way, THERE is also nothing on the record to indicate as to when the ties rod ends were greased. Tata Diesel Vehicle, Operators Hand Book requires that tie rods ends should be greased after every 1000 kms. Admittedly, water body of the bus got broken before the accident. This show that the vehicle was an old one. If it would have been checked properly before driving it, the defect of the tie rod would have been detected and the accident would not have taken place. For this omission, the owners and the driver are responsible. It has been observed in Oriental Fire & General Co. Ltd. V. Satya Deo Dubey, (2) as follows: "7. In the present case the vehicle was manufactured in the year 1962 and the accident took place in the year 1973. THERE is no evidence produced on the part of the defendant appellants to show as to in what manner the vehicle was being maintained. It has not been specifically shown that the vehicle was periodically checked and its parts including the tie rod were found to be in working order. In these circumstances negligence on the part of the owner of the vehicle and its driver is established. "