Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 859 of 1988 Appellant :- United India Insurance Company Limited Respondent :- Km. Tarawati Counsel for Appellant :-Nagendra Kumar Srivastava Counsel for Respondent :- A.K. Sinha,Awadhesh Kumar Mishra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Nagendra Kumar Srivastava, learned counsel for appellant. None present for respondent.
2. This First Appeal From Order has been filed under 110-D of Motor Vehicle Act, 1939 read with Section 173 of the Motor Vehicles Act, 1988 by United India Insurance Company Limited ( hereinafter referred to as "Insurance Company"), being aggrieved by judgment and award dated 29.4.1988 passed by Motor Accident Claims Tribunal/ IInd Additional District Judge, Etawah (hereinafter referred to as "Tribunal") in Accident Cases No. 101 and 102 of 1984.
3. Brief facts of the present case are that the claimants - respondent no. 1 to 6 filed the Claim Case No. 101 of 1984 under Section 110A of the Motor Vehicles Act and Motor Accident Claim No. 102 of 1984 of Motor Vehicles Act, both o the same facts on the allegations that one Smt. Kamlesh Kumari died in an accident on 17.6.1984 at 12.15 p.m. while she was travelling as a passenger in the Bus No. UTR-9854 ( owner by respondents no. 8 and 9 and insured with the appellant) coming from the opposite direction collided with the bus. Smt. Kamlesh Kumari received fatal injuries and hence the claim petition filed by the claimants claiming compensation of Rs.97,556/- by way of special and general damages. The Tribunal has illegally and wrongly awarded a compensation of Rs.38,100/- jointly and severally against the owners of the bus and the appellant, insurer of the truck which is under challenge in this appeal.
4. It is submitted by the counsel for the appellant that the deceased was a labourer on their vehicle in question and the negligence was of both the driver. It is submitted that it was a case of contributory negligence of both the drivers. The submission that the finding is bad, cannot be sustained. The Tribunal while passing the award has granted a meagre sum of Rs.38,000/- and that the appeal on the smallness of amount, requires to be dismissed. The fact that the licence is not produced was never proved before the Tribunal nor is it agitated in the grounds of appeal.
5. The Insurance Company even under the old Act was under an obligation to prove that there was a breach of policy condition which were not proved. Just because the owner was not mentioned to be liable in the operative portion cannot be a ground to absolved the insurance company.
6. The appeal fails and is dismissed.
Order Date :- 29.4.2019/Mukesh