Heard Shri Tarun Kumar Misra, learned counsel for the appellant.
Shri S. K. Tripathi, learned counsel who has put in appearance on behalf of the respondent no.5. He has filed his Vakalatnama which is taken on record. None has appeared for any of other respondents.
The instant appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 27.11.2009 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.15, Lucknow in Motor Accident Claim Petition No.476 of 2004 whereby a sum of Rs.5,27,900/- alongwith 6% interest has been awarded in favour of the claimant-respondents no.1 to 6.
Learned counsel for the appellant has submitted that the tribunal has erred in fixing the liability on the insurance company since from the record it was established that the deceased was a gratuitous passenger and was travelling in the Mahendra Pickup truck which had the capacity to carry three passengers whereas eight persons were travelling thereon and in any case since the deceased was a gratuitous passenger accordingly no compensation would have been saddled on the insurance company. In support of his submission, he has relied upon a decision of the Apex Court reported in 2005 (2) T.A.C. 5 (S.C.) M.V. Jayadevappa and others Vs. Oriental Fire and General Insurance Co. Ltd. and others.
It has further been submitted that it was the case of contributory negligence which has also not been taken note of by the tribunal and accordingly the finding rendered by the tribunal are not sustainable accordingly the award needs to be set aside.
Learned counsel for the respondent no.5 has submitted that the award passed by the tribunal is just and proper and requires no interference.
The Court has heard learned counsel for the parties and also perused the record.
In order to test the veracity of the submissions of the learned counsel for the appellant, certain brief facts giving rise to the aforesaid appeal are being noted first.
The claimant-respondents no.1 to 6 preferred a claim petition bearing number 476 of 2004 before the Motor Accident Claims Tribunal/District Judge, Lucknow with the averments that Mohd. Mujib, son of Abdul Waheed who is the husband of the claimant-respondent no.1 and father of claimant-respondents no.2 to 4 and son of the claimant-respondents no.5 and 6. It was stated that the deceased was engaged in the work of embroidery and from the aforesaid vocation was able to earn Rs.8000/- in a month. It was stated that on 04.10.2004 at around 2.00 p.m. near village Golakunwa, Hardoi Road while the deceased was travelling in a Mahendra Pickup truck bearing No.UP 32 AN 3167 alongwith his embroidered goods. At that relevant time, the aforesaid Mahendra Pickup truck dashed against bus bearing No. UP 32 AN 0375 as a result the deceased sustained injuries and later he succumbed to them. Two other people also travelling in the Mahendra Pickup truck bearing No. UP 32 AN 317 also sustained injuries and died.
The claim petition was contested by the owner by filing a written statement wherein denied the accident and stated that the accident did not occur on account of the rash and negligent travelling of the Mahendra Pickup truck rather it was on account of the rash and negligent driving of bus bearing No.UP 32 AN 0375 and further submitted that this particular bus ran against the deceased who was pedestrian and crossing the road. The truck was duly insured and its driver had valid and effective driving licence. The insurance company also filed its written statement. However, general pleas were raised on the basis of pleadings. The tribunal framed four issues and after considering the evidence both oral and documentary came to the conclusion that it was not a case of contributory negligence rather the accident occurred on account of rash and negligence driving of the Mahendra Pickup truck bearing No.UP 32 AN 3167. It also found that the vehicle in question was duly insured and its driver had a valid and effective driving licence while considering the amount of compensation it has awarded a sum of Rs.5,27,900/- alongwith 6% interest from the date of the application by means of award dated 27.11.2009. It is this award which has been assailed by the learned counsel for the appellant.
As far as the first submission of the learned counsel for the appellant regarding contributory negligence is concerned, the same does not impress the Court; inasmuch as the record including the evidence of D.W.1 shows that it was categorically established that it was the driver of Mahendra Pickup truck bearing No.UP 32 AN 3167 which dashed against the stationery truck. Moreover, the driver of Mahendra Pickup truck was also not examined to rebut the testimony or the statement of the witnesses which had come on record.
In light of the aforesaid overwhelming evidence the plea of contributory negligence which was neither raised in the written statement nor substantiated cannot be countenanced at this stage before the appellate court, accordingly the first submission is rejected.
Coming to the other limb of the submission regarding the fact that the Mahendra Pickup truck was being utilized for carrying gratuitous passengers and accordingly the award cannot be fastened on the insurance company since it is an apparent violation of the policy condition and the award ought to be indemnified by the owner.
This submission of the learned counsel for the appellant also does not hold water. From the perusal of the record, it would indicate that it has been categorical statement of the P.W.1 who is the widow of the deceased coupled with the statement of the D.W.3 which has been able to establish categorically that the deceased was a craftsman and was engaged in the work of hand embroidery. As part of his vocation, he used to carry his embroidery goods from Chowk and is to travell. It has been the statement that the deceased travelled alongwith his embroidery goods on Mahendra Pickup truck which was registered as a light goods vehicle. There is no material on record to indicate that the deceased was not authorized to sit in the vehicle alongwith his goods or that he was not the owner of the goods which was in carried in that light motor vehicle i.e. Mahendra Pickup truck. In absence of any plea regarding the aforesaid in the pleadings nor any cogent evidence having been led by the appellant/insurance company coupled with the fact that no such inference was also elicited during the cross-examination of the claimant witnesses. This Court is of the view that the aforesaid plea is not open to be raised to improve without any pleadings and evidence before the appellate court accordingly the second submission also fails.
In view of the above, this Court is satisfied that the findings returned by the tribunal in its award dated 27.11.2009 is sound. The appeal is devoid of merit and is rejected. However, there shall be no order as to costs. The record of the trial court shall be remitted within a period of two weeks.
It has also been informed that the entire amount as per the award has already been deposited before the tribunal. Any amount which is still in deposit shall be released in favour of the claimant-respondents in light of the findings given in the award. The statutory amount deposited before this Court shall also be remitted before the tribunal concerned to be released in favour of the claimant-respondents.
Order Date :- 27.11.2019 ank