National Insurance Co Ltd vs Rina Baruah And Ors

1.Heard Mr. B.K. Purkayastha, learned counsel for the appellant as well as Mr. S.K. Goswami, learned counsel for the respondent no.5.

This appeal is filed by National Insurance Company Ltd. against the Judgment & Awarddated 30.04.2003 passed by MACT, Tinsukia in MAC

Case No. 84/2001.

Undisputed facts in this appeal were that one Sarat Baruah died in a motor vehicleaccident on 27.10.2001 involving the offending vehicles bearing

Registration Nos. AS-15/3177 and PUH-9008. At the time of accident the deceased was driving the vehicle PUH-9008 and the accident occurred due

to head on collision of the vehicles driven by the deceased and the vehicle no. AS-15/3177. The vehicle driven by the deceased was insured with the

present appellant and deceased himself was owner and driver.

The parents of the claimant filed a claim-petition seeking compensation and thelearned Tribunal by the impugned judgment awarded a compensation

of Rs.3,65,500/- and directed both the insurance company to satisfy the award in equal share. In addition to the award of Rs. 3,65,500/- the Tribunal

also directed the present appellant to pay Rs. 60,000/towards own damage claim for cost of the vehicle.

Aggrieved by the said award the appellant insurer of the vehicle driven by thedeceased preferred the instant appeal.

The only question raised in this appeal is that the deceased himself was theowner/driver of the vehicle insured by the appellant and accident having

taken place due to contributory negligence of the deceased, the insurer of the vehicle owned by the deceased could not have been saddled with any

responsibility to satisfy the award. Admittedly the deceased was the owner and insured of one of the vehicle involved in the instant case and the

accident occurred due to contributory negligence of the deceased himself. This being the position, deceased himself being the insured and first party,

so far the appellant-insurance company was concerned, no responsibility could have been fixed with the appellant to pay compensation to the legal

heirs of the deceased, who himself was responsible for the accident and therefore the direction of the learned Tribunal to satisfy 50% of the awarded

amount by the present appellant was apparently erroneous and cannot be sustained. Accordingly the award made by the Tribunal is modified to the

effect that the claimant shall be entitled to only 50% of the compensation determined by the Tribunal in as much as 50% shall be deducted from the

total compensation, due to contributory negligence of the deceased. Only 50% of the compensation determined by the Tribunal shall be paid by the

respondent no. 5. The liability of the present appellant shall be limited to pay only Rs. 60,000/- awarded by the Tribunal against own damage claim for

the damage of the vehicle.

It is submitted by learned counsel Mr. Goswami that respondent no. 5 has already paidthe entire amount to the extent of its liability as directed by

the Tribunal. There shall be no question of any recovery, if the amount deposited by respondent no.5 was already withdrawn by the claimant.

The appellant shall be at liberty to withdraw Rs. 60,000/- with interest fixed by the Tribunal from the amount deposited by the appellant with the

Registry. After payment of Rs. 60,000/- with interest, the appellant shall be at liberty to withdraw the rest of the amount including the statutory

deposit.

The appeal accordingly stands allowed and disposed of.