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New India Insurance Company Vs. Vindhwasni Devi @ Maya Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1985)ACC421
AppellantNew India Insurance Company
RespondentVindhwasni Devi @ Maya Devi and ors.
Cases ReferredSee British India General Insurance Company v. Itbar Singh
Excerpt:
.....by the insurer. 8. having considered the material on record and the contentions raised, we are satisfied that there is no merit in this appeal, which is accordingly dismissed with..........the claim was partly allowed as mentioned above.4. the appeal in this court has been filed by the insurer. the insurer has challenged that it was not liable to pay any compensation to the claimant for the death of her husband in the accident. the first contention was that two trucks going a head had raised so much of dust that the truck no. u.p.t. 1240 went into road parti, the driver of the truck could not see anything and collided. in other words, the accident was as a result of a circumstance, which was beyond the control of the driver of the truck. we see no reason to go into this question. it is well settled that the defence open to the insurer is limited to the question as enumerated in section 96(2) of the act. the same pleas are open to him in appeal. he cannot challenge any.....
Judgment:

A. Banerji, J.

1. This first appeal from order is directed under Section 110-D of the Motor Vehicles Act by the insurer M/s New India Insurance Company, Head Office Bombay, Branch office Kanpur, against the decision of the Motor Accidents Claims Tribunal (IInd Additional District Judge, Farrukhabad dated 1st October 1977. The claim of Smt. Vindhwasni Devi-respondent No. 1 and her two minor sons namely Shiv Kumar Katiyar and Ashock Kumar Katiyar was decreed in part and she was awarded an amount of Rs. 23318/- as compensation for her and her two sons. Out of this amount, Rs. 20,00/- was made payable the insurer and the balance was made payable by Tara Singh-respondent No. 2 (driver) and by Gurcharan Singh-respondent No. 3 (owner). Respondent No. 1-claimant Smt. Vindhwasni Devi was also allowed proportionate costs of the petition.

2. Deceased Pratap Narain Katiyar, husband of the claimant Smt. Vindhwasni Devi and father of two minor sons Shiv Kumar and Ashok Kumar Katiyar met with an accident on 30th September, 1971 when he was travelling in a Government jeep along with others and the jeep was hit by truck No. U.P.T. 1240 driven by Tara Singh-respondent No. 2 and owned by Guru Charan Singh, Barkat Singh and B.S. Chhawara Transport-respondent Nos. 3 4 and 5. The accident took place on the Farrukhabad-Kaimganj road in the district of Farrukhabad. As a result of accident, Sri Pratap Narain Katiyar fell down and sustained fatal injuries and died at the spot. He was about 54 years of age and was a Cane Inspector at Fatehgarh in Government service. It was stated that the deceased was earning Rs. 511/- per month at the time of his death. The claimant prayed for compensation of Rs. 50,000/-. Gurcharan Singh, owner of the truck contested the claim on the ground was caused by dust raised by-passing vehicle, nothing could be seen and the Government jeep carrying the deceased and others collided with the truck. His defence was that he was not liable to pay any compensation as there was no negligence on the part of the driver of the truck. In any event, his plea was that since the vehicle was insured, it was insurer who was liabe to pay compensation, if any. Respondent No. 4 Barkat Singh and respondent No. 5, B.S. Chhawara Transport took identical stand as that of Gurcharan Singh. Appellant, New India Insurance Company while denying all the allegations made in the claim petition further denied its liability to pay compensation on the ground that the petition was time barred, the insurance policy in respect of the truck involved in the accident stood in the name of Sardar Ajeet Singh on the date of the accident and that the accident was not due to the negligence on the part of the driver of the truck. As such, the insurer was not liable to pay compensation for any accident caused by any act of the employees of respondent Nos. 3 to 5.

3. The claims Tribunal framed eight issues and held that Smt. Vindhwasni Devi was entitled to claim compensation on her behalf as well as on behalf of her two minor sons. Gurcharan Singh, respondent No. 3 in this appeal was held to be the owner of the truck No. U.P.T. 1210. The Tribunal further held that Sri Pratap Narain Katiyar died due to the accident caused by truck No. U.P.T. 1240 and the accident had taken place solely due to the negligence of the driver of the truck. It was held that Tara Singh was driving the truck at the time of aforesaid accident. According to the Tribunal, the claim was not barred by time, the insurance Policy was originally in the name of Sardar Ajeet Singh but subsequently it was transferred in favour of Gurcharan Singh with effect from 27th September, 1971 by the insurer. Lastly, the Tribunal held that the deceased would have earned a total sum of Rs. 34, 978/- as his pay if he had not died during the accident but after taking into consideration that 1/3rd of the said income would have spent for his personal expenses, a sum of Rs. 23,318/- was held to be the amount payable as compensation. In view of the above findings, the claim was partly allowed as mentioned above.

4. The appeal in this Court has been filed by the insurer. The insurer has challenged that it was not liable to pay any compensation to the claimant for the death of her husband in the accident. The first contention was that two trucks going a head had raised so much of dust that the truck No. U.P.T. 1240 went into road parti, the driver of the truck could not see anything and collided. In other words, the accident was as a result of a circumstance, which was beyond the control of the driver of the truck. We see no reason to go into this question. It is well settled that the defence open to the insurer is limited to the question as enumerated in Section 96(2) of the Act. The same pleas are open to him in appeal. He cannot challenge any finding of the Tribunal which is not covered by the provisions of Section 96 (2) of the Motor Vehicles Act. The questions as to how the accident took place, whether there was negligence on the part of the driver or whether the driving was rash or negligent are questions which cannot be raised by the insurer either before the Claims Tribunal or before the Appellate Court or before the High Court in appeal. See British India General Insurance Company v. Itbar Singh : [1960]1SCR168 .

5. This next contention was that the insurance policy stood in the name of Sardar Ajeet Singh on the date of the accident and such, insurer was not liable to pay any compensation. This contention is without any merit. There was an issue No. 6 specifically framed in thus respect. According to the finding of the Tribunal, the Policy of the Insurance was produced which clearly showed that although initially it was the name of Sardar Ajeet Singh but was subsequently transferred in favour of Gurcharan Singh with effect from 27th September, 1971. The accident took place on 30th September, 1971 i.e. 3 days later. Thus the insurance policy stood in the name of Gurcharan Singh and was in respect of truck No. U.P.T. 1240 involved in the accident in question. This argument has absolutely no merit and must be rejected.

6. The next contention that no award could be passed in favour of the two minors as they have not been impleaded as petitioners in the claims petition has no merit at all. We find that these two minors were impleaded as respondent Nos. 5 and 6 in the claims-petition. Smt. Vindhwasni, claimant was fully entitled to make petition on their behalf as well.

7. It is also well settled that the quantum of compensation is not open to be challenged by the insurer. No other point was pressed.

8. Having considered the material on record and the contentions raised, we are satisfied that there is no merit in this appeal, which is accordingly dismissed with costs. There will be only one set of costs for the claimant-respondent No. 1 and her sons (respondent Nos. 6 and 7) to be paid by the New India Insurance Company.


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