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New India Assurance Co. Ltd. Vs. Mohd. Ashfaq and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal from Order No. 597 of 1976
Judge
Reported inI(1984)ACC220; [1986]59CompCas43(All)
ActsMotor Vehicles Act, 1939 - Sections 96(2)
AppellantNew India Assurance Co. Ltd.
RespondentMohd. Ashfaq and ors.
DispositionAppeal dismissed
Excerpt:
- - it was denied that the deceased was of robust health and was earning more than rs......rs. 24,000 from november 1, 1976, onwards. it was directed that the primary liability would be of opposite party no. 4, northern india general insurance company, and opposite party no. 5, new india general assurance co., with which the former company had merged and opposite parties nos. 4 and 5 were allowed time till october 31, 1976, to pay the sum of rs. 24,000 along with interest.2. the facts giving rise to this appeal are that on july 10, 1969, at 11 a.m. one mohd. ishaq, aged about 37 years, was the victim of an accident on bareilly-rampur road within the limits of village jauharpur, p.s. izat-nagar. the deceased was going on a cycle on the link road where a culvert was under construction. truck no. usr 2825, driven by opposite party no. 1, jehangir, came at a fast speed and dashed.....
Judgment:

O.P. Saxena, J.

1. This is an appeal under Section 110B of the Motor Vehicles Act, 1939, against the award dated August 31, 1976, made by the Motor Accidents Claims Tribunal, Bareilly (II Additional District Judge, Bareilly), decreeing the claim for a sum of Rs. 24,000 with pendente lite and future interest at 6% per annum up to October 31, 1976, and 10% per annum on the sum of Rs. 24,000 from November 1, 1976, onwards. It was directed that the primary liability would be of opposite party No. 4, Northern India General Insurance Company, and opposite party No. 5, New India General Assurance Co., with which the former company had merged and opposite parties Nos. 4 and 5 were allowed time till October 31, 1976, to pay the sum of Rs. 24,000 along with interest.

2. The facts giving rise to this appeal are that on July 10, 1969, at 11 a.m. one Mohd. Ishaq, aged about 37 years, was the victim of an accident on Bareilly-Rampur Road within the limits of village Jauharpur, P.S. Izat-nagar. The deceased was going on a cycle on the link road where a culvert was under construction. Truck No. USR 2825, driven by opposite party No. 1, Jehangir, came at a fast speed and dashed against the deceased as a result of which he came under the wheels of the truck and died. A first information report of the accident was lodged by P.W. 2, Abdul Karim, the father of the deceased, at about 1.15 p.m. on the same day.

3. The claimants are the sons and daughters of Mohd. Ishaq, deceased. They filed a petition for recovery of Rs. 72,000 as compensation. It was said that the income of the deceased was more than Rs. 300 per mensem from cloth business. It was alleged that the accident took place due to rash and negligent driving of the truck.

4. The petition was contested by opposite party No. 1, Jehangir, the driver of the truck, and opposite party No. 4, the Northern India General Insurance Co. Opposite party No. 1 contested the petition on the ground that the accident took place not on account of any negligence on his part but on account of negligence on the part of the deceased. It was denied that the deceased was of robust health and was earning more than Rs. 300 per mensem.

5. Opposite party No. 4 assailed the compensation claimed and also denied that the deceased died on account of accident with truck No. USR 2825.

6. Opposite parties Nos. 2 and 3, the owners of the truck, did not contest the petition.

7. Opposite party No. 5, the New India Assurance Co. Ltd., was also impleaded on its request. However, no written statement was filed in spite of sufficient opportunity given to it.

8. The Motor Accidents Claims Tribunal held that the deceased died as a result of the accident with truck No. USR 2825, that the truck was being driven rashly and negligently, that the claimants are the heirs of the deceased, that the omission to implead the widow, Smt. Rashida, does not affect the petition as the claim is for the benefit of all the legal representatives and the award could be made for the benefit of all of them, that the petition was properly presented, that the claimants are entitled to Rs. 24,000 as compensation and that all the opposite parties are liable to pay the compensation. Hence, this appeal by opposite party No. 5, the New India Assurance Co. Ltd.

9. We have heard the learned counsel for the parties. The appellant did not file any written statement before the Tribunal in spite of various opportunities given to it. The grounds on which an insurance company can defend a claim petition have been given in Section 96(2) of the M.V. Act. In the absence of any defence on behalf of the appellant, it cannot be said that it could avail of any of the grounds given in Section 96(2) of the Act. It is not open to an.insurance company to contest a claim petition on any ground other than the grounds mentioned in Sub-section (2) of Section 96. It is not disputed that the truck No. USR 2825 was insured with opposite party No. 4, M/s. Northern India General Insurance Co, or that opposite party No. 4, M/s. Northern India General Insurance Co., Rampur, merged into the New India Assurance Co. Ltd. On account of the merger, opposite party No. 5 is also liable to pay compensation.

10. Opposite party. No. 5 (the appellant) did not contest the petition. The record does not show that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident, or thatthere was any breach of a specified condition of the policy as referred to in Section 96(2)(b) of the Act or that the policy is void on the ground that it was obtained by non-disclosure of a material fact or by a representation of a fact which was false in some material particular. The appellant is not entitled to contest the appeal on any ground other than those mentioned in Section 96(2) of the Act. We may refer to British India General Insurance Co. Ltd. v. Captain Itbar Singh [1959] 29 Cbmp Cas (Ins) 60; AIR 1959 SC 1331 ; Om Prakash v. Smt. Rukmini Devi, AIR 1982 All 389, and Manjula Devi Bhuta v. Manjusri Raha [1968] ACJ 1 (MP). The appellant cannot assail the finding that the deceased died as a result of rash and negligent driving of the truck by the driver or the compensation awarded to the claimants.

11. The claim has been decreed against all the opposite parties and the primary liability has been fixed on opposite parties Nos. 4 and 5. There is no illegality in the award and there is no merit in the appeal.

12. The appeal is dismissed. The costs shall be easy.


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