Court No. - 24
Case :- FIRST APPEAL FROM ORDER No. - 511 of 1997 Appellant :- National Insurance Company Limited Respondent :- Smt. Suman And Others Counsel for Appellant :- V.K.Birla,O.P.Mishra,S.B.L. Gour Counsel for Respondent :- Sunil Kumar
Hon'ble Saral Srivastava,J.
Heard learned counsel for the appellant and perused the record.
The present appeal has been filed challenging the order dated 27.02.1997 passed by Additional District Judge, Ghaziabad whereby the tribunal has awarded Rs. 72,200/- for the death of Har Swaroop Tomar.
The claimant-respondent instituted claim petition claiming compensation for the death Har Swaroop Tomar who died in an accident on 19.10.1988 between the Bus no. UGE-192 and Truck No. PJS-2290. The appellant is the insurer of Truck No. PJS-2290.
Counsel for the appellant has contended that in the said accident several persons have died and in some of the claim petitions the appellant was exonerated from the liability to pay compensation and the liability was fastened upon the UPSRTC as the tribunal in those cases held that the accident was caused due to negligence of driver of the Bus. He submits that the judgment of the tribunal where the insurance company was exonerated and the liability was fastened on UPSRTC on account of negligence of driver of Bus was filed before the tribunal, and the tribunal has erred in law in not following those judgments as the evidence in those cases are identical to the facts and evidence of the instant case. Thus, submission is that the finding of the tribunal with regard to the negligence of driver of Truck to the extent of 50% in the accident is illegal.
Heard learned counsel for the appellant and perused the record.
The tribunal in deciding the issue no. 1, 2 & 3 has considered the judgments rendered by the tribunal. In other claim petitions where the tribunal has exonerated the insurance company and held the UPSRTC liable for the payments for compensation on account of negligence of driver of Bus in the accident, it is not clear from record that the conductor of the Bus (PW-2 in the present case) had appeared before the tribunal to prove the negligence of driver of Bus. The tribunal in the instant case while deciding the issue of negligence has relied upon an additional evidence i.e. the testimony of PW-2 who was eye witness of the accident and the conductor of the Bus who had deposed before the tribunal that the driver of the Truck was also negligent in the accident. Upon the testimony of PW-2, the tribunal recorded a finding that the driver of the Truck was also negligent in the said accident.
Learned counsel for the appellant could not demonstrate on the record that PW-2 who was an eye witness of the accident had also appeared in other claimant petition in which the insurance company was exonerated. Thus, in view of the facts that the additional evidence in the form of testimony of PW-2 had come on record to establish that the driver of the Truck was also negligent in the accident. Testimony of PW-2 was not rebutted by insurance company therefore, the finding of the tribunal on the issue of contribute negligence of driver of Truck cannot said to be illegal or perverse or against the record.
Thus, for the reasons stated above finding of the tribunal with regard to the contributory negligence is affirmed. The appeal lacks merit and is hereby dismissed. There shall be no order as to cost.
Order Date :- 13.9.2018 Mohit Kushwaha