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United India Fire and General Insurance Company Ltd. Vs. Rameshwar Dayal and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal From Order No. 160 of 1976
Judge
Reported in[1984]56CompCas68(All)
ActsMotor Vehicles Act, 1939 - Sections 96(2)
AppellantUnited India Fire and General Insurance Company Ltd.
RespondentRameshwar Dayal and anr.
DispositionAppeal dismissed
Cases ReferredSee British India General Insurance Co. Ltd. v. Captain Itbar Singh
Excerpt:
- - in the result we find no good reason to allow the cross-objection. 7. in view of the above discussion, the appeal as well as the cross-ob-jection both fail and are accordingly dismissed......guilty of rash and negligent driving of the truck which resulted in the fatal injuries to kamlesh kumar, deceased, and, as such, the owner and the insurance company both were liable to pay damages. the tribunal further held that the claimant was entitled to recover 'a sum of rs. 30,250 as compensation.3. the insurance company has filed an appeal against the award solely on the ground that the amount of compensation awarded to the claimant is excessive. the claimant has also filed a cross-objection to the appeal. the appeal and the cross-objection both were heard together and both were disposed of by a common order.4. learned counsel for the insurance company urged that the tribunal committed an error in awarding a sum of rs. 30,250 as compensation to the claimant for the death of.....
Judgment:

K.N. Singh, J.

1. On May 12, 1973, at about 11 a.m. Kamlesh Kumar, a youngman of 19 years, was travelling by road in the city of Etawah on a motor cycle. A truck having registration No. UPI 7900 was proceeding ahead of him. Kamlesh Kumar blew the horn with a view to overtake the truck. The driver of the truck gave signal and allowed Kamlesh Kumar to overtake, but, when Kamlesh Kumar was in the process of overtaking, the driver of the truck came to his side and dashed against the motor cycle of Kamlesh Kumar. There was a collision between the two vehicles as a result of which the motor cycle fell down and caught fire and Kamlesh Kumar received serious injuries. He was rushed to the hospital where he succumbed to his injuries.

2. Rameshwar Dayal Awasthi, father of the deceased, Kamlesh Kumar, filed a claim petition under Section 110D of the M. V. Act, 1939, claiming a sum of Rs. 80,000 as compensation. Shiv Dayal Varma, the owner of the truck, and United India Fire and General Insurance Co. Ltd., the insurer of the vehicle, both contested the claim petition. They pleaded that the driver of the truck was not guilty of rash and negligent driving of the truck and they were, therefore, not liable to pay any damages. The driver of the truck did not contest the proceedings. The Motor Accidents Claims Tribunal, Etawah, by its award dated September 25, 1975, held that the driver of the truck was guilty of rash and negligent driving of the truck which resulted in the fatal injuries to Kamlesh Kumar, deceased, and, as such, the owner and the insurance company both were liable to pay damages. The Tribunal further held that the claimant was entitled to recover 'a sum of Rs. 30,250 as compensation.

3. The insurance company has filed an appeal against the award solely on the ground that the amount of compensation awarded to the claimant is excessive. The claimant has also filed a cross-objection to the appeal. The appeal and the cross-objection both were heard together and both were disposed of by a common order.

4. Learned counsel for the insurance company urged that the Tribunal committed an error in awarding a sum of Rs. 30,250 as compensation to the claimant for the death of Kamlesh Kumar. The owner of the truck, who contested the proceedings, has not filed any appeal. There is no dispute that the truck in question was insured by the appellant company and had it covered a risk to the extent of Rs. 50,000. Section 96(2) of the M. V. Act, 1939, provides that an insurer as defendant to the action is not entitled to take any defence which is not specified in that section. The insurer is liable to indemnify the owner for the decree that may be passed against him in respect of injuries caused to a third party. Once it is found that the owner was liable to pay compensation on account of rash and negligent driving of the vehicle, the insurer is liable to indemnify the owner to the extent if the amount so determined is covered by the insurance policy. It is not open to the insurance company to avoid liability on the ground that the compensation awarded to a claimant is excessive. Section 96(2) does not confer a right on an insurer to take a defence on that ground or to avoid that liability. See British India General Insurance Co. Ltd. v. Captain Itbar Singh [1959] 29 Comp Cas (Ins) 60; AIR 1959 SC 1331.

5. Since the appellant-company was the insurer, it was liable to indemnify the owner to the extent of Rs. 50,000. The finding of the Tribunal that the driver of the truck was guilty of rash and negligent driving has not been assailed before us. In the circumstances, the appellant company is not entitled to maintain this appeal challenging the quantum of compensation The appeal is liable to be dismissed.

6. Learned counsel for the claimant urged that the Tribunal committed an error in computing general damages on the basis of Rs. 50 per mensem as the deceased's contribution towards the family fund. On an appraisal of evidence, we find that Rameshwar Dayal Awasthi, father of the deceased, made a statement that the deceased, Kamlesh Kumar, was a student of B. Sc. While pursuing his studies he was carrying on agricultural operations and earning money. He also sometimes earned money by trading in potatoes. Raineshwar Dayal Awasthi further stated that the total income of the deceased was Rs. 400 per mensem. In cross-examination Sri Rameshwar Dayal Awasthi admitted that the deceased was spending about Rs. 150 to Rs. 200 per mensem on his own person. Sometimes when the deceased had no money he used to obtain money from his father. The statement of Rameshwar Dayal Awasthi does not positively prove that the income of the deceased was Rs. 400 per mensem, instead it was between Rs. 150 to Rs. 200. After the death of Kamlesh Kumar, the agricultural land and other businesses still remained intact.c Having regard to these facts and circumstances, the Tribunal held that the deceased may have been contributing towards the family fund a sum of Rs. 50 per mensem. Fixing the longevity of the deceased at 60 years, the Tribunal awarded a sum of Rs. 25,000 as general damages. In our opinion, the Tribunal has not committed any error warranting any interference by this court. In the result we find no good reason to allow the cross-objection.

7. In view of the above discussion, the appeal as well as the cross-ob-jection both fail and are accordingly dismissed. Parties shall bear their own costs.


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