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The New India Insurance Company Ltd. Vs. Smt. Khayali and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Insurance
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 76/75
Judge
Reported in1980WLN(UC)244
AppellantThe New India Insurance Company Ltd.
RespondentSmt. Khayali and anr.
DispositionAppeal dismissed
Excerpt:
.....and by the amendment act 56 of 1969 has been increased rs. 50,000/-.;hence the order of the learned member of the tribunal limiting the liability of the insurance company to the extent of rs. 5,000/-only is not justifiable.;appeal dismissed with costs - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had..........j.1. in the proceeding initiated on the claim petition filed by respondent no. 1 smt. khayali, the learned member of the motor accident claims tribunal partabgarh (camp chittorgarh) had passed an award for an amount of re. 9000/- with costs and interest of rs. 6% p.a. from the date of the petition to the date of realisation, on account of the accident met by smt khayali on 30.5 72 near sainik school, chittorgarh. on that day she had left her village gilund at about 7.30-8.00 a.m. in a bus in order to attend the marriage of mangilal at village--irani. when the bus stopped near sainik school, chittorgarh she got down from it and was trying to take out her children when truck no. dsl 6175 coming from towards chittorgarh struck against her. she sustained grievious injury in her leg and was.....
Judgment:

Kanta Bhatnagar, J.

1. In the proceeding initiated on the claim petition filed by respondent No. 1 Smt. Khayali, the learned Member of the Motor Accident Claims Tribunal Partabgarh (Camp Chittorgarh) had passed an award for an amount of Re. 9000/- with costs and interest of Rs. 6% p.a. from the date of the petition to the date of realisation, on account of the accident met by Smt Khayali on 30.5 72 near Sainik School, Chittorgarh. On that day she had left her village Gilund at about 7.30-8.00 a.m. in a bus in order to attend the marriage of Mangilal at village--Irani. When the bus stopped near Sainik School, Chittorgarh she got down from it and was trying to take out her children when Truck No. DSL 6175 coming from towards Chittorgarh struck against her. She sustained grievious injury in her leg and was immediately taken to the hospital where she hid to remain for about two months for treatment. She had claimed Rs. 26000/- in all on various counts by way of damages on account of the Injuries sustained by her. Nathesingh respondent No.2 was the driver of the bus. Nathesingh did not contest the petition and exparte proceedings were ordered against him. The truck Involved In the accident was said to be insured with the appellant New India Insurance Company Limited which contested the petition. After trial it was held that it was on account of rash and negligent driving of the truck insured with the appellant that the accident had taken place. In view of that finding the aforesaid award was passed in favour of the respondent No 1 Smt. Khayali. Being aggrieved by that order, the appellant the New India Insurance Company has preferred this appeal.

2. In the order under appeal dated 24 3 75 the learned Member has limited the liability of the Insurance Company to the extent of Rs 5000/-only with an order that the remaining amount will be recoverable from Nathesingh. Being dissatisfied by this part of the order limiting the liability of the Insurance Company cross objection has been filed by Smt. Khayali.

3. Though the appellant has assailed the findings of the learned Member of the Tribunal on a number of grounds all of them need not be discussed because Section 96(2) of the Motor Vehicles Act limits the scope of the defence of the Insurance Company. Learned Counsel for the appellant in view of this position of law, confined his argument only on the ground that the Insurance Company Is not liable to compensate the injured Smt. Khayali for the damages caused on account of the accident. It has been strenuously contended by the learned Counsel for the appellant that the injured ban failed to prove that the truck involved in the accident was, on the relevant date, Insured with the appellant company or that necessary conditions of the policy were complied with by the owner or the driver of the truck.

4. Mr. Maheshwari, learned Counsel for the appellant has argued that the number and date of the policy hiving not been given by the injured it was not possible for the Insurance Company to meet out the case and therefore, the learned Member of Tribunal has erred in arriving at a conclusion that the truck was insured with the appellant company.

5. Another argument advanced by the learned Counsel la that the learned Member of Tribunal has not considered the alternate plea taken by the company that because of the non compliance of the condition Incorporated in the policy, the policy, even if any, was void.

6. Meeting out these arguments Mr. Shisodia learned Counsel for the respondent No. 1 submitted that it is the company alone who could have said whether the vehicle was insured with it or not He has also drawn my attention to the inconsistent pleas taken by the company in the reply filed to the Claim Petition and has tried to justify the findings of the learned Member for holding the company liable for damages.

7. On perusal of the record it is evident that the New India Insurance Company was made a party by the applicant Smt. Khayali. It can not be expected of the persons involved in the accident to know the number or date of the Insurance Policy of the vehicles. The record is with the company and it was for the company to admit or deny the factum of the vehicle being Insured with it. No body has appeared on behalf of the Insurance Company to state that the vehicle involved in this case was not insured with it. Issue No.2 framed by the Tribunal is relevant for the purpose of the decision of this appeal. It reads as under:

Whether the non-applicant No. 2 New India Insurance Company was not the insurer of Truck No. DSL 6175 at the time of accident

8. It was for the Insurance Company to discharge this burden which it has failed to do. Apart from it the pleas taken in the reply filed by the appellant Company are inconsistent because while denying the Insurance of the Vehicle it has also come with a case that the conditions incorporated in the policy were not complied with. If it was so, the company must have come with the evidence as to what were the conditions which were not complied with by the owner of the vehicle. In this view of the matter the finding of Issue No 2 against the Insurance Company stands justified, and calls for no interference. With the result that the award passed by the learned Member of the Tribunal in favour of Smt. Khayali and incurring liability on the Insurance Company stands duly justified.

9 While deciding the cross objection filed on behalf of respondent No. 2 injured Smt. Khayali, provisions of Section 95 of the Motor Vehicles Act will have to be locked into. The date of accident is 3G-5-72. Learned Counsel for the Insurance Company fairly agrees that provisions of Section 95(2) (a) of the Motor Vehicles Act are applicable to the goods vehicle and even at the relevant time of the accident the liability of the Company to compensate was restricted to Rs. 5000/-. The liability of the Insurance Company In respect of the goods vehicle was previously up Rs. 20,000/-and by the amendment Act 56 of 1969 has been increased to Rs. 50.000/-.

10. Hence the order of the learned Member of the Tribunal limiting the liability of the Insurance Company to the extent of Rs. 5000/- only is not justifiable.

11. Consequently the appeal filed by the Insurance Company Is dismissed with costs. The cross objection filed on behalf of respondent No.1 Smt. Khayali is allowed with costs and the order limiting the liability of the Company to Rs. 5000/- only Is set aside.


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