The main legal point established in the judgment is the liability of the insurer for compensation due to negligence under the Motor Vehicles Act, 1988.

JUDGMENT :

MA No. 508/2010

1. The appellant-National Insurance Co. Ltd. (“NIC” in short) has maintained this appeal under section 173 of the Motor Vehicles Act, 1988 being aggrieved of an award dated 18.03.2010 passed by the Motor Accident Claims Tribunal, Kathua (“MACT, Kathua” in short) in terms whereof four (04) claim petitions born out of same accident came to be disposed of and one of the claim petitions on file no. 190/2005 was by the respondent nos. 1 to 4 in this appeal.

2. The motor vehicle accident in reference is of 26.06.2005 when a car bearing Registration no. JK08A-5860 on its way from village Chhaper to Chhaper Morh got in collision with a moving train at an unmanned railway crossing leaving four (04) persons namely Taro Devi, Kaka Ram, Santosh Kumari and Chanchla Devi sitting outside said car dead. The registered owner of the said car was Buti Lal and the appellant-NIC was the insurer. The respondent nos. 1 to 4 suffered loss of Kaka Ram who was the husband of the respondent no. 1-Malavi Devi and father of the respondent nos. 2 to 4 – Sarban Kumar, Naresh Kumar & Bodh Raj.

3. The MACT, Kathua came to hold the respondent no. 1-Malavi Devi, the widow of the accident victim deceased Kaka Ram entitled to compensation of an amount of Rs. 1,51,000/- comprised of compensation under the following heads :-

This compensation is made payable @ 7.5% p.a. from the date of filing of the claim petition that being 26.07.2005 till its actual realization.

4. In coming to award said compensation in favour of the respondent no. 1 to the exclusion of the respondent nos. 2 to 4, the MACT, Kathua came to hold that the ill-fated vehicle Baleno car bearing Registration no. JK08A-5860 which was then being driven by its owner – Buti Lal, who is the respondent no. 5 in the present appeal, met the accident with the moving train by an act of negligence and carelessness on the part of its driver-Buti Lal, the respondent no. 1 who ought to have taken due care and caution while on railway crossing and that he in missing to see a moving train on the track it was an act of sheer negligence and lack of proper care and caution.

5. The MACT, Kathua, thus, came to hold the negligence on the part of the offending car’s owner-cum-driver Buti Lal- respondent no. 5 in the appeal. The MACT, Kathua came to hold that the offending car being insured with the appellant-NIC for a period from 15.06.2005 to 14.06.2005 under Policy no. 9137543 and was thus on the date of the accident being an insured vehicle.

6. The MACT, Kathua came to hold that the appellant-NIC had failed to prove that the respondent no. 5-Buti Lal, the owner-cum-driver was not having valid driving licence and, therefore, came to hold the insured and insurer responsible for payment of compensation in the case to the amount of Rs.1,51,000/-. The MACT, Kathua reckoned the deceased Kaka Ram to be as a gratuitous passenger and, therefore, getting covered by third party risk insurance coverage so as to hold the appellant-NIC liable for payment of the compensation.

7. The appellant in its memo of appeal has chosen to plead and exploit a fact that the negligence in driving the offending vehicle was not pleaded proved and without that factor the liability of the appellant-NIC for payment of compensation could not have been held arisen and fastened on the owner and resultantly shifted to the appellant-NIC. The appellant-NIC is also seeking to find fault with the grant of compensation in the case by the MACT, Kathua on the plea that the Railway Department and the driver of the train involved in the accident were not named as the party respondents in the claim petition. Lastly, the appellant-NIC is me