National Insurance Co. Ltd. And Others. vs Madhulata Marape And Others.

This miscellaneous appeal has been filed by the appellants being Insurer, driver and truck owner respectively against the award dated 18.10.2008 passed in Accident Claim Case No.119/06 by the Third Additional Motor Accidents Claims Tribunal, Seoni whereby while allowing the claim petition filed by respondent No.1 to 5 award of Rs.6,24,572/- has been awarded.

In brief the facts of the case are that an application for compensation has been filed by the respondents/ claimants in respect of death of one Shyamrao Marape, who died in an accident which took place on 12.05.2005 by truck No. M.H.-31-A.P./5935 at National Highway No.7, Seoni-Nagpur Road at gram Suktara, Police Station Kurai, District Seoni when his Bajaj M-80 moped was ran over by the said truck. The aforesaid claim was assailed by the respondents on the ground that the truck in question was not at all involved in the said accident as on the same date it was at India Nepal Border at Badni in U.P.

Learned counsel has submitted that the learned Member of the Claims Tribunal has erred in not appreciating the evidence in its proper perspective despite there being positive evidence on record regarding the presence of the aforesaid truck at India Nepal Border at Badni in U.P.

Learned counsel has also drawn the attention of this Court to the written statement filed by the appellants wherein in para 14 of the same it is clearly mentioned that on the date of the incident, the truck was not present on the spot and in fact it was being plied at quite a distance from the place of the incident.

In the written statement filed by the appellant No.1 i.e. the Insurance Company, it is stated that false evidence has been concocted to involve the truck in question. It is further submitted that in support of his contention, the owner of the truck has also been examined. He has stated that on 12.05.2005 i.e. the date on which the alleged accident took place, his truck was not present on the place where the accident is said to have taken place and in fact it was present at Badni Border, U.P. He has further stated that the vehicle was seized after a period around one month and in the FIR also the number of the vehicle and the name of the driver is not mentioned. He has also been cross-examined in extensive. In support of his contention he has also proved the document Ex.D/1, which is a letter issued to the Insurance Company, bilty dated 10.05.2005 Ex.D-2 C and a receipt dated 10.05.2005 issued at Chhawni Board, Kaamthi (Ex.D-3 C). Ex.D/4 is the tax receipt dated 11.05.2005 issued at Tilwara ghat bridge, Jabalpur. Ex. D/5 is the tax receipt dated 11.05.2005 issued by the office of the Municipal Council, Katni. Ex. D/6 is the receipt dated 11.05.2005 issued by the National Highway Authority of India, Allahabad. Ex. D/7 is the receipt dated 13.05.2005 issued by Singh Fruit Centre, Kathmandu. He has admitted that during the course of proceedings, while taking his vehicle on Supurdginama, no such plea was raised by him that he is being falsely involved in the aforesaid incident. He has also admitted that he has not filed any document to suggest that any complaint was made that he is being falsely implicated in the case. He has denied that from 10 p.m. of 11.05.005 to 1 am. Of 12.05.2005, his truck was at Khwasa barrier which is at the border of Madhya Pradesh and Maharashtra. He has stated that on 11.05.2005 at 11 p.m. his truck was at Allahabad as it was going to Kathmandu. He has admitted that in Ex.D/5 the number of the vehicle and the date has been mentioned in different ink. He has further admitted that in Ex.D/5 it is mentioned that the truck was going from Nagpur to Kathmandu. Appellant No. 2. i.e. the defendant No.1 before the Claims Tribunal has also examined himself as D.W.2., who has reiterated the statement of the owner of the vehicle and has clearly stated that no such accident ever took place with the truck. In his cross-examination, nothing substantive could be extracted by the claimants. Thus, on the basis of the aforesaid evidence, the learned counsel for the appellants has submitted that grave illegality has been committed by the learned Judge of the Tribunal to hold that the truck in question was involved in the case, despite there being positive evidence brought on record by the appellants to dislodge the claim.

Learned counsel for the respondents has opposed the prayer and has submitted that no illegality has been committed by the learned Member of the Claims Tribunal in passing the impugned order. It is further submitted that the evidence has been rightly appreciated by the learned Member of the Claims Tribunal while dismissing the claim of the appellant that no such accident ever took place. It is further submitted that the deceased had died in a road accident, which fact cannot be denied by the appellants and there was no reason for the respondents to falsely implicate any other person. Hence, it is submitted that the appeal being devoid of merit be dismissed.

Learned counsel for the respondent No.5 has also taken a preliminary objection that although the appeal has been filed by the insurance company, owner and driver of the vehicle, however the Vakalatnama has been filed only only behalf of the insurance company and as such appeal itself is not maintainable. Learned counsel has also relied upon the judgement of the Hon'ble Apex Court in the case of Asha and others Vs. United India Insurance Co. Ltd. Reported in 1(2004) ACC 533 (SCC) wherein it is held that a joint appeal filed by the owner along driver is maintainable excluding insurer.

The respondents have filed the cross objection regarding inadequacy of the award and has prayed the award amount be enhanced accordingly.

Heard the learned counsel for the parties and perused the record.

So far as the preliminary objection raised by the learned counsel for the respondent No.5 that the appeal is not maintainable as owner and driver of the vehicle have not filed their Vakalatnama is concerned, on scrutiny of the Vakalatnama it is found that the appeal has been filed by the insurance company only and there are no signatures of either the owner or the driver, thus appeal is being considered at the instance of the insurance company only.

A scrutiny of the record also reveals that the insurance company had already taken the permission under Section 170 (b) of the Motor Vehicles Act, 1988 to contest the matter in absence of owner and driver of the vehicle as well. Thus although the appeal is being considered on behalf of the insurance company, this Court holds that the insurance company is competent to file the appeal on all the grounds available to them under the law as they have already obtained permission as provided under Section 170(b) of the Act, 1988.

On merits, this Court finds that the accident took place on 12. 05.2005 when the deceased Shyamrao Marape, at around 12.45 a.m. in the night was coming back to his house on a Bajaj M-80 moped after performing his duty in the forest department, at that time, it is said that the truck in question dashed against him resulting in his death. The owner of the vehicle has also examined himself as DW-1 and has filed certain documents from Ex.D-1 to D-7 to demonstrate that on the date of accident i.e. on 12.5.2005, the vehicle was not in or around District Katni, but was in fact at India-Nepal border. The document Ex.D-1 is the application submitted by the owner to the National Insurance Company with a prayer that an enquiry be made as the accident has not taken place between the vehicle in question and the husband of the complainant. Ex.D-2 is the receipt issued by Hari Roadways, Nagpur, Ex.D-3 is the receipt issued by Chhavni Board, Kamthi-Chungi, Ex.D-4 is the receipt of Narmada Bridge, Jabalpur, Ex.D-5 is the receipt issued by the Nagar Palika Nigam, Mudwara, Katni, Ex.D-6 is the receipt issued by the National Highways Authority of India and Ex.D-7 is the receipt issued by Singh Fruit Centre, Kathmandu to demonstrate that they had received goods which were sent from India. In his cross examination DW-1 has admitted that in every check post of various RTOs the record is available regarding the entry of the vehicle in the particular area. In Ex.D/2 which is the Bill-T, although all the particulars are mentioned but it only proves that the truck in question was hired by from Hari Roadways, Nagpur. He has also admitted that in Ex.D-3 issued by Chhavni Board, Kamthi-Chungi series registration number of the vehicle has not been mentioned. In Ex.D-4 the registration number of the truck is also not mentioned. In Ex.D-5 there are no signatures of any person and in Ex.D-6 also there is no registration number of the vehicle. Ex.D-7 which is the receipt of Singh Fruit Centre, Kathmandu, the person, who has issued such receipt has not been examined in support of said document.

A perusal of the impugned award this Court finds that the learned Member of the Claims Tribunal has rightly appreciated the evidence and has disbelieved the documents submitted by the owner of the vehicle in support of his claim that the vehicle was not present at the time and on the date when the accident took place. So far as the fastening of the liability on the appellant insurance company is concerned, no fault can be found with it. Hence, it is held that the appellant insurance company is liable to pay compensation as awarded by the Claims Tribunal.

So far as cross objection filed by the respondents regarding the enhancement of the awarded amount is concerned, this Court finds that the deceased, at the time of his death was aged around 53 years. His monthly income has been proved to be Rs.6189/- and looking to his age multiplier of

11 has been applied by the learned Judge of the MACT after deducting one-third of the amount as provided under the Motor Vehicles Act, 1988. The aforesaid calculation of the compensation cannot be said to be unfair or unwarranted in any manner. So far as the contention raised by the learned counsel for the respondents that one-fourth amount ought to have been deducted from his salary is concerned, it cannot be accepted looking to the age of the deceased, who was 53 years of age.

In view of the aforesaid discussion, this Court does not find any merit in the appeal as also the cross objection, accordingly the same are hereby dismissed.

C.C. As per rules.