Liability of insurance company and assessment of compensation under the Motor Vehicles Act 1988.

JUDGMENT :

Anil Kumar Choudhary, J.

M.A. No. 395 of 2013

Perusal of the record reveals that the though the notice was issued to the respondent no. 2 and the summon was properly addressed and duly sent by registered post acknowledgment due but neither the postal envelope nor any card has been received, hence, in terms of the proviso of Order V Rule 9(5) of the Code of Civil Procedure, the service of notice upon respondent no. 2 is sufficient.

M.A. No. 340 of 2013 with M.A. No. 395 of 2013

By the Court:-Heard the parties.

2. Since both appeals have arisen out of the same judgment, hence, these appeals are disposed of by this common judgment.

3. These Miscellaneous Appeals are directed against the judgment and award dated 03.07.2013 passed by learned District & Additional Sessions Judge II-cum-MACT, Judge, Dhanbad in Title (Motor Vehicles) Case no. 292 of 2010 whereby and where under, in an application under Section 166 of the M.V.Act. 1988, learned tribunal has awarded a sum of Rs. 12,78,076/-and after deducting Rs. 50,000/-under Section 140 of the M.V. Act, directed the insurance company to pay the remaining amount with interest thereon @ 6% per annum from the date of filing of the suit till realisation.

4. The brief facts of this case is that the deceased Suresh Sharma @ Suresh Rana, who was category D employee of D.A.V. Public School, Koylanagar, on 03.11.2009 at about 4.00 PM while riding a motorcycle with the informant of the criminal case, the offending truck being rashly and negligently driven, dashed the said motorcycle and by which, the deceased Suresh Sharma @ Suresh Rana and the person riding with him in the said motorcycle sustained grievous injuries. The deceased was earning a gross salary of Rs. 7613/-per month and he has 06 dependents. The deceased Suresh Sharma @ Suresh Rana was aged about 32 years at the time of accident. The insurance company filed written statement and pleaded that the driver of the offending truck was not having a valid and effective driving licence at the time of accident and since the claimants have not mentioned as to who was driving the motorcycle at the time of the accident hence, it was submitted on behalf of the insurance company that the person driving the vehicle had no valid and effective licence to drive motorcycle. It was also pleaded that both the drivers, of the motorcycle and of the truck, were under the influence of the alcohol at the time of accident and since, there was head on collision so, the truck driver cannot be said to be at fault, solely.

5. On the basis of the rival pleadings of the parties, learned tribunal framed following eight issues :-

(i) Is the case maintainable in its present form ?

(ii) Is there any cause of action for the present case ?

(iii) Whether the deceased Suresh Sharma @ Suresh Rana died in motor vehicle road accident on 03.11.2009 caused by Truck No. WB-37-7243?

(iv) Whether the driver of the Truck No. WB-37-7243 was driving the vehicle rashly and negligently and caused the accident ?

(v) Whether the driving licence of driver of Truck No. WB-37-7243 was valid on the date of accident ?

(vi) Whether the Truck No. WB-37-7243 had valid and effective permit at the date and time of the accident ?

(vii) To what amount of compensation the claimant / plaintiffs are entitled to ?

(viii) Whether offending vehicle no. WB-37-7243 was insured with M/s United India Insurance Company Limited, having policy no. 3315083/090/000/0461 valid from 12.03.2009 to 11.03.2010?

6. In support of their case, the claimants have examined three witnesses and proved the documents which have been exhibited as 1 to 5 but the insurance company chose not to examine any witness or adduce any evidence, whatsoever. The owner of the vehicle, being the opposite party no. 1, did not appear before the tribunal and has not filed any written statement.

7. Out of the three witnesses examined by the claimants, PW 1 – Sangita Sharma, who is the wife of the deceased-Suresh Sharma @ Suresh Rana, has stated in her e