RESERVED ON 14.12.2018 DELIVERED ON 25.2.2019
Court No. - 22
Case :- FIRST APPEAL FROM ORDER No. - 372 of 2003 Appellant :- Dinesh Kumar Dwivedi Respondent :- The New India Insurance Company Ltd. & Another Counsel for Appellant :- Vashistha Tiwari Counsel for Respondent :- S.N.Shukla,Arun Kumar Shukla,Rajesh Kumar Dubey
Hon'ble Salil Kumar Rai,J.
1. Heard learned counsel for the parties.
2. The present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act, 1988') by the owner of the vehicle against the judgement and award dated 26.9.1997 passed by the Motor Accident Claims Tribunal/IV Additional District & Sessions Judge, Deoria (hereinafter referred to as, 'Tribunal') in Motor Accident Claim Petition No. 69 of 1992.
3. Opposite party No. 2 was the owner of Jeep bearing Registration No. URX 8161 while the appellant was owner of Truck bearing Registration No. UHB 147 (hereinafter referred to as, 'offending vehicle'), which was insured with opposite party No. 1. Motor Accident Claim Petition No. 69 of 1992 was filed by opposite party No. 2 against the appellant as well as opposite party No. 1, i.e., the Insurance Company claiming a compensation of Rs. 28,767/- for the alleged damage to his vehicle on 6.4.1992 in an accident caused due to rash and negligent driving of the offending vehicle. The claim included the expenses incurred by the opposite party No. 2 in getting the jeep repaired and other incidental expenses.
4. The appellant as well as opposite party No. 1, i.e., the Insurance Company filed their written statements denying the allegations made in the claim petition and the entitlement of opposite party No. 2 to any compensation as claimed by him in the claim petition.
5. The Tribunal framed issues regarding the factum of accident as well as the negligence of the driver of the offending vehicle in causing the accident, the inter se liability of the appellant and opposite party No. 1 to pay compensation to opposite party No. 2 and the amount of compensation to which the opposite party No. 2 was entitled.
6. The Tribunal decided the issues regarding the factum of accident and the negligence of the driver of the offending vehicle in favour of opposite party No. 2. In its impugned award dated 26.9.1997, the Tribunal further held that as the claim petition was for damage to third party property, therefore, the Insurance Company, i.e., opposite party No. 1 was liable to pay compensation to opposite party No. 2 only to the extent of its liability as prescribed under the Act, 1988 and balance amount of compensation was liable to be paid by the appellant, i.e., the owner of the offending vehicle.
7. It has been argued by learned counsel for the appellant that the findings recorded by the Tribunal regarding factum of accident and the negligence of the driver of the offending vehicle are contrary to evidence on record as it was proved from the evidence on record that the accident had occurred because of rash and negligent driving of the driver of the vehicle owned by opposite party No. 2. It was also argued by learned counsel for the appellant that under Section 147(5) of the Act, 1988, the opposite party No. 1, i.e., the Insurance Company was liable to pay the entire compensation to the opposite party No. 2 and the Tribunal had erred in holding that opposite party No. 1 was liable to pay only Rs. 6,000/- under the Act, 1988 and the balance amount of compensation had to be paid by the owner/appellant. It was argued by the learned counsel for the appellant that for the aforesaid reasons, the impugned award dated 26.9.1997 passed by the Tribunal is liable to be set aside and in any case modified by directing the Insurance Company to pay the entire amount of compensation to the opposite party No. 2.
8. I have considered the submissions of the learned counsel for the appellant and perused the record.
9. The factum of accident and the negligence of the driver of the offending vehicle was proved by the testimony of one Ram Lagan Singh, claimant-witness No. 1, who was an eye- witness of the accident. A reading of the testimony of P.W. 1 shows that the said witness has testified to the factum of accident and the negligence of the driver of the offending vehicle in causing the accident as alleged by the opposite party No. 2 in his claim petition. The testimony of P.W. 1 was also tested in the cross-examination conducted by appellant as well as opposite party No. 1. Further, it is evident from the photographs of the site, which are part of the records of the case and were collectively marked as Paper No. 26-Ga in the Tribunal that the jeep of opposite party No. 2 was on the left side of the road and in order to avoid the accident the jeep of opposite party No. 2 swerved further left, but the accident could not be avoided. In the circumstances there is no error in the findings of the Tribunal regarding the factum of accident and the negligence of the driver of the offending vehicle in causing the accident, which damaged the vehicle of opposite party No. 2.
10. So far as the argument of learned counsel for the appellant regarding his liability under the policy of Insurance is concerned, Section 147(2) of the Act, 1988 provides that the liability in a policy of Insurance in respect to damage to any third party shall be limited to Rs. 6,000/-. In absence of any specific agreement undertaking any liability in excess of the aforesaid statutory limit and payment of separate premium by the insured for the said purpose the liability would be confined to that provided in the Act, 1988.
11. A glance at the insurance policy purchased by the appellant from opposite party No. 1 which was marked as paper No. 31-Ga in the Triubnal shows that no separate and additional premium was paid by the appellant to impose a liability on the Insurance Company which would be in excess to the statutory limit. The cover note of the policy shows that the appellant had paid a total premium of Rs. 6,023/-, which was the reduced amount after a deduction of 5% special discount of Rs. 317/- from the total premium of Rs. 6,340/- due to the appellant. The aforesaid Rs. 6,340/- included Rs. 5,065/- paid by the appellant for his own damage, Rs. 1,245/- was paid towards liability for public risk and Rs. 30/- was paid towards the liability to persons employed in operating the vehicle. As stated earlier, no additional premium was paid by the appellant. The liability of the Insurance Company was limited to that fixed under the Act, 1988, i.e., Rs. 6,000/- for damage to the jeep of opposite party No. 2. The Tribunal had awarded a total compensation of Rs. 23,500/- to the opposite party No. 2 and rightly held that Rs. 6,000/- was to be paid by the Insurance Company and balance Rs. 17,500/- was to be paid by the appellant, i.e., the owner of the offending vehicle.
11. For the reasons stated above, there is no error in the award dated 26.9.1997 passed by the Tribunal. The appeal lacks merit and is hereby dismissed.
Order Date :- 25.2.2019 Anurag/-