Suresh Kumar Singhal vs Smt. Kumud Tripathi

Satish Chandra, J.—Both the appeals have been filed u/s 110D of the Motor Vehicles Act, 1939 against the judgment and decree dated 11.5.1984, passed by Motor Accident Claims Tribunal, Unnao in Claim Petition No. 63 of 1981 where the compensation of Rs. 1,60,000 was awarded along- with interest @ 9% per annum.

The brief facts of the case are that on 6.9.1980 at about 9.00 p.m. in the night, Sri Pramod Kumar Tripathi, (hereinafter referred to be as deceased) was travelling in a Taxi No. U.P.-G 6256 from Lucknow to Kanpur. When the Taxi reached near tri-junction of Maurawan, Kanpur-Lucknow Road, a truck was coming from the opposite side and its drizzling light creates problem to the taxi driver. So, he immediately took slight turn towards footpath and colluded with the Truck No. U.P. D. 4780, which was parked on the road with no back light or signal and as such, the accident occurred. The deceased sustained injury and died on the spot. The deceased was aged about 38 years and was earing Rs. 1,350 per month at the time of his death, he was serving as Assistant R.T.O. in U.P. Government service.

The wife of the deceased has filed the claim petition before the Motor Accident Claims Tribunal for compensation. The Tribunal after cross-examining the witnesses and other evidences finally observed that this is the case of contributory negligence of both the vehicles. So, the Truck and Taxi owner are liable to pay compensation of rupees one lac jointly and severally. Both the vehicles were insured with the New India Assurance Company and as per the then law, the liability of the insurance company was also confined to Rs. 10,000 + 50,000=Rs. 60,000 pertaining to both the vehicles. Not being satisfied with the award given by the Tribunal, the insurance company as well as the Truck owner have filed above mentioned cross-appeals before this Court. The Taxi owner is not appearing in this Court in spite of sufficient service upon him.

With this background, Sri R. N. Tilhari learned Counsel appearing for the Truck owner submits that the claim petition filed before the lower court was time barred because as per the then Section 110A of the Motor Vehicles Act, 1939, the limit to file the claim was sixty days from the date of occurrence. The accident took place on 6.9.1980 and the claim petition was registered on 31.3.1981. Thus, the claim petition was barred by five months.

On specific query from the Bench, learned Counsel accepted that the application for condonation of delay was filed on 2.5.1981 and the appeal was filed on 29.8.1981. He further submits that both the cases are pending since long (1984) before this Hon''ble Court and were listed before number of Hon''ble Judges but lower court record was never summoned, so the same is not available. Regarding the condonation of delay, the issue No. 5 was decided by the Tribunal and finally the Tribunal observed that the petition is not barred by time. This finding requires no interference specially when lower court record is not available. Hence, the same is sustained.

Learned Counsel for the Appellant has not disputed the accident and quantum of compensation. However, he submits that the Truck owner is not liable to pay any compensation as the Truck was parked right side. To support his argument, he has relied on the ratio laid down in the following cases:

P.K. Ramachandran Vs. State of Kerala and Another,

Kumari Poonam and Anr. v. Phool Chand and Ors. 1995 ALJ 51.

Ram Baran v. Deputy Director of Consolidation, Gonda and Ors. 1984 LCD 416.

On the other hand, Sri Anand Mohan learned Counsel appearing for the insurance company submits that both the vehicles were insured with M/s. New India Assurance Company. As per the then law, the amount of Rs. 50,000 + Rs. 10,000 = Rs. 60,000 as awarded by the learned Tribunal has already been deposited by the insurance company.

Sri Y.K. Mishra learned Counsel appearing for the claimants-Respondents have justified the impugned order and submitted that no amount has been released in their favour.

I have heard both the parties at length and gone through the material available on record.

From the record, it appears that it is an undisputed fact that the deceased was travelling by Taxi No. U.P.G.-6256 from Lucknow to Kanpur and at about 9 p.m. there was darkness on the road and slight rain was also flowing. Due to the high beam of the light created by a Truck, which was coming from the opposite direction, the Taxi driver was forced to took a slight turn towards the footpath and colluded with the Truck No. U.P.D.-4780, which was parked on the road with no back light or signal. The deceased died on the spot and other passengers were also got injury but they filed separate claim petitions.

In the instant case, the Tribunal has already observed that there was no delay in filing the claim petition and the learned Counsel have admits that application for condonation of delay was filed on 29.8.1981. According to him, no order was passed but he has not brought any evidence to this effect specially when the Tribunal has observed in its order (issue No. 5) that the petition was not barred by time. In these circumstances, the objection raised by learned Counsel for the Truck owner are not sustainable as discussed above.

On merit, the accident is not in dispute. Similarly, the quantum of the compensation is also not disputed. So, the appeal filed by the Truck owner has no merit and the same is accordingly, dismissed.

So far as the appeal filed by the insurance company is concerned, the same has also no merit for the reason that liability of insurance company was fixed only for Rs. 60,000 pertaining to both the vehicles. So, this appeal has been filed unnecessarily.

In view of the above, the order passed by the Motor Accident Claims Tribunal dated 11.5.1984 in Claim Petition No. 63 of 1981 is hereby sustained alongwith the reasons mentioned therein.

Both the appeal are hereby dismissed.

The amount, if any, deposited in this Court shall be transmitted to the Motor Accident Claims Tribunal, Unnao who shall proceed in terms of the award.