An appeal cannot introduce new grounds not raised in the lower court, reaffirming liability for death due to negligent driving in motor accident claims.

JUDGMENT :

Susmita Phukan Khaund, J.

Heard learned counsel Ms. S. Roy for the appellant and learned counsel Mr. I. H. Borbhuiya for the claimant/respondents and learned counsel Mr. A. I. Uddin for respondent No. 3.

2. This appeal is preferred by the National Insurance Company Ltd (herein after referred to as the appellant or the insurer). The claimant- Sri Madan Paul; Sri Pachu Gopal Majumdar, owner of vehicle AS 02E/6346; Md. Nurul Haque, owner of Vehicle AS 02E/2386; Sri Ganesh Das, driver of AS 02E/6346; and Md. Khairul Islam, driver of AS 02E/2386, are arrayed as respondent nos. 1, 2, 3, 4 and 5 respectively.

3. The insurer is aggrieved by the judgment and award dated 02.07.2012 passed by learned Member, MACT, Sankardev Nagar, Hojai in connection with MAC Case No. 411(N)/11, awarding a compensation of Rs. 5,70,000/- to the claimant and directing the appellant to pay compensation along with interest @ 8% p.a. from the date of filing of the petition till payment.

4. The genesis of the case was that on 30.05.2011 at about 12:30 p.m., the claimant’s brother was working under a standing truck bearing registration No. AS021/2386 at Lankajuri, Modertoli under Doboka P.S. At that time, another vehicle bearing registration No. AS02E/6346, a dumper driven in a rash and negligent manner with excessive speed hit the standing truck which was parked on the side. As the truck was parked owing to mechanical defect, Sri Dharmendra Pal (herein after referred to as the deceased), who was working under the standing truck sustained injuries as a result of the accident and he died on the spot. His body was forwarded to B. P. Civil Hospital, Nagaon for post-mortem. The claimant had to incur expenses to the tune of Rs. 50,000/- for the funeral expenses. An FIR regarding this incident was lodged and registered as Doboka P.S. Case No.72/2011 under Sections 279 /304(A)/427 of the INDIAN PENAL CODE (IPC for short).

5. The claimant prayed for compensation of Rs. 12 lacs in the corresponding MAC Case No. 411/2011. The owner of the allegedly speeding truck, the owner of the standing truck, the driver of the allegedly speeding truck, the driver of the standing truck, the insurer of the allegedly speeding truck and the insurer of the standing truck were arrayed as respondent Nos. (1) Sri Pachu Gopal Majumdar, owner of vehicle AS 02E/6346; (2) Md. Nurul Haque, owner of Vehicle AS 02E/2386; (3) Sri Ganesh Das, driver of AS 02E/6346; (4) Md. Khairul Islam, driver of AS 02E/2386; (5) National Insurance Company Ltd, Kolkata Branch. Insurance Company of AS02E/6346; and (6) Name of Insurance Company for vehicle AS02E/2386 in MAC No. 411/2011. Against the claim petition by the claimant, O.P. Nos. 2, 4 and 5 contested the proceeding and filed written statement whereas the O.P. Nos. 1, 3 and 6 did not contest the proceeding. O.P. Nos. 2, 4 and 5 through separate written statements have denied their liability. It was admitted by O.P. No. 2 that the truck bearing registration No. AS02E/2386 was mechanically defective and was thereby parked. It was averred that as the deceased was working under the truck, the owner cannot be held liable.

6. On the other hand, the O.P. No. 2 has stated that he can be exonerated from his liability as his truck was duly insured by the Insurance Company. The vehicle had all the valid documents like registration certificate, fitness certificate and the driver was holding a valid driving license i.e., F 29 /KA/09/TV, which was valid at the time of the accident as the driving license was valid up to 06.02.2012.

7. The insurer on the other hand has questioned the age and income of the deceased. It is submitted on behalf of the appellant who was the insurer of the truck No. AS021/2386 bearing registration No. AS02E/6346 that the truck was parked without any precautionary measures on the road and the truck No. AS023/6346 hit the standing truck accidentally. It is further submitted that the claimant is not entitled to any compensation as he is not a min