Insurer remains liable despite absence of vehicle fitness certificate, emphasizing negligence as core to compensatory claims under Motor Vehicles Act, enabling courts to enhance compensation based on established income evidence.

ORDER :

SANDEEP JAIN, J.

Order on Appeal:-

1. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the insurer of the offending Xylo car No.UP-35-H- 0005 against the impugned judgment and award dated 29.11.2014 passed by the Motor Accidents Claims Tribunal/Additional District Judge, court no.4, Kanpur Nagar, in Motor Accident Claim Petition No. 159 of 2013 (Smt. Savita Tiwari and others vs. Susheel Kumar Pandey and another), whereby, for the untimely death of Manoj Kumar Tiwari @ Gandhi in an accident that took place on 05.12.2012, the Tribunal has awarded compensation of Rs.4,44,000/- along with interest at the rate of 6% per annum to the claimants(wife, son and mother), which has been ordered to be indemnified by the insurer of the offending Xylo car No.UP-35-H-0005.

2. Shri Aditya Singh Parihar, learned counsel for the appellant-insurance company submitted that the deceased was alleged to be travelling on the date of the accident i.e. 05.12.2012 in the offending Xylo car No.UP-35- H-0005 when the accident occurred in which besides the deceased, three other persons namely Amit Dubey, Pankaj Shukla and Gaurav Mishra also died. He further submitted that from the G.D. entry No.31 dated 05.12.2012 recorded in Police Station Pilua District Etah, it was proved that in the accident there was no negligence of the offending driver. Learned counsel for the appellant further submitted that even the tribunal did not frame any issue regarding the negligence of the offending driver and also did not conclude that there was any such negligence on the part of the offending driver, as such, without the finding of negligence, compensation under Section 166 of the Motor Vehicles Act,1988 has been awarded to the claimants, which is illegal. It was further submitted that the offending vehicle was a commercial vehicle and for plying it, a valid certificate of fitness was mandatory but the offending vehicle was not having a valid fitness on the date of the accident, as such, the insurance company was not liable to indemnify the compensation payable to the claimants, but this fact was also not considered by the tribunal. It was further submitted that for awarding compensation under Section 166 of the Act, a finding of negligence is sine qua non, but this finding was not recorded by the tribunal, as such, no compensation under Section 166 of the Act could have been awarded to the claimants. It was further submitted that even the eye witness of the alleged accident admits that there was no negligence of the offending driver, as such, the tribunal could not have decided the claim petition under Section 166 of the Act. With these submissions, it was prayed that the appeal preferred by the appellant-insurance company be allowed and the cross objection of the claimants-respondent be dismissed.

3. Per contra, learned counsel for the claimants-respondents submitted that on the date of the accident, the deceased Manoj Kumar Tiwari was travelling in the offending car alongwith Pankaj Shukla, Gaurav Mishra and Amit Dubey, the vehicle was being driven in a rash and negligent manner, which was proved from the testimony of eye witness Vishnu Tiwari PW-2. He further submitted that due to the rash and negligent driving of the offending driver, the vehicle overturned and it was res ipsa loquitur proved that there was negligence on the pa