The New India Assurance Co. Ltd. vs Swetha and Others

S. Sujatha, J.—This appeal is by the insurer against the judgment and award of the Tribunal, Ranebennur in MVC No. 880/2010.

The brief facts of the case are that:

"On 28.8.2010 at about 13.25 hours, the deceased Narayana who was working as a ticket checker in Samrat Bus bearing Regn. No. KA-22/B-1496, at Makanur Cross while issuing the tickets to the passengers, who was standing in the bus, fell down from the bus due to the rash and negligent driving of the driver of the said bus, near Chalageri Cross. Due to the said accident, he sustained grievous injuries as a result of which he succumbed while under treatment at JJM Medical College Hospital, Davangere. Based on these facts, the claimants were before the claims Tribunal. The claim was contested by the insurer by filing objection statement wherein the defence taken by the insurer was that the accident occurred due to the sole negligence of the deceased. After appreciating the evidence placed on record, the Tribunal awarded compensation of Rs. 7,75,000/- along with interest @ 6% p.a."

Being aggrieved, the insurer is before this Court mainly on three grounds:

"- Firstly, the Tribunal has not considered the contributory negligence on the part of the deceased who was standing in the bus without following the traffic rules and regulations and safety measures

- Secondly, the quantum of award made by the Tribunal is excessive and exorbitant.

- Thirdly, saddling the liability on the appellant to the full extent ignoring that the deceased was an employee travelling in the vehicle insured with the appellant and that no additional premium being paid by respondent No. 4 to the appellant for covering the wider legal liability to employees, the liability would be governed by the provisions of the Workmen''s Compensation Act"

On the contrary, learned counsel appearing for the claimants opposes the appeal and justifies the award passed by the Tribunal. It is contended by the learned counsel that the grounds now urged before this Court were not taken by the appellant before the Tribunal. In the absence of any adequate evidence which necessarily requires to prove the contentions now raised by the appellant, the grounds now raised for the first time are not to be entertained even if it is considered as a question of law which requires supporting evidence, cannot be considered at this juncture in the appellate stage without there being any arguments advanced by the appellants and nor findings given by the Tribunal to that effect.

I have given my anxious attention to the rival submissions made by the parties.

Firstly, regarding the contention of the learned counsel for the insurer that ticket checker was standing in the bus without following the traffic rules, the contributory negligence of not being properly considered by the Tribunal and utmost, it would have been apportioned 50:50, is not worthy of acceptance, considering the nature of work of the conductor or the ticket checker who is necessarily required to spend their time on their feet, walk about in the moving vehicle to collect fare and to issue the tickets which cannot be performed sitting in a comfortable manner in the present scenario of the job conditions of the conductor. In view of the rash and negligent driving of the driver of the bus which has been proved before the Tribunal, the deceased who was on his work fell down and sustained grievous injuries to which he succumbed. In such circumstances, no contributory negligence is attributable to the ticket checker/conductor.

Secondly, regarding the quantum P.W. 3 - the Manager of the Samrat Bus with whom the deceased was working as a ticket checker has deposed that he was paying salary of Rs. 6000/- per month, no evidence is produced by the appellant to discard the same, which is rightly appreciated by the Tribunal and the monthly income is taken at Rs. 6000/- which cannot be found fault with.

As regards the third contention, the deceased was working as the ticket checker/conductor, not covered with the wider legal liability and the liability utmost would be covered by the provisions of the Workmen''s Compensation Act, is also not acceptable. No such ground being raised by the insurer before the Tribunal and no evidence is placed on record to establish the fact that the insurance policy was whether under the ''Act Policy'' or a ''Comprehensive Policy''. All the contentions raised before the Tribunal are very vague and general in nature. In the absence of specific contentions raised by the insurer which necessarily requires evidence to meet the arguments, no such new plea can be raised before this Court in appeal. Accordingly, Appeal is dismissed. The amount in deposit shall be transmitted to the Tribunal.