The insurer may exercise the right to recover compensation paid to claimants if it proves that the insured violated policy terms crucial to the cause of the accident.

JUDGMENT :

JITENDRA KUMAR, J.

1. The present Miscellaneous Appeal has been preferred against the impugned judgment/award dated 12.08.2016, passed by learned Additional District Judge-Ist-cum-Chairman, Motor Accident Claim Tribunal, Gaya in MAC Case No. 115 of 2011 (D.J.)/ 21 of 2012, whereby learned Tribunal has directed the appellant/Insurance Company herein to pay compensation of Rs. 3,75,000/-, excluding Rs. 50,000/-, which was already paid to the claimants towards interim compensation, with interest @ 9% per annum from the date of institution of the claim petition till the payment.

2. The factual background of the case is that one Sujit Kumar, aged about 12 years, died in a road accident on G.T. Road, N.H.-2, near Kusha More at about 6:00 AM on 09.04.2011 under Madanpur Police Station, Aurangabad District, involving the motor vehicle (Tata Magic) bearing Registration No. BR-02M-5290.

3. Subsequent to the accident, Madanpur P.S. Case No. 57 of 2011 was registered against the driver of the offending vehicle for offence punishable under Sections 279 , 337, 338 and 304A of the INDIAN PENAL CODE . After investigation, charge-sheet was submitted against the FIR named accused viz., Matin Miyan @ Matiullah, son of late Riyatan @ Riyasat Hussain.

4. On the basis of the death of the deceased/Sujit Kumar on account of motor accident, claim case No. 115 of 2011 was filed by the parents of the deceased against the Insurance Company, who is the appellant herein, and one Matin Miyan @ Matiullah, son of late Riyatan @ Riyasat Hussain stating that the deceased was 12 years of age at the time of accident. It was also stated that the accident took place on account of rash and negligent driving of the driver of the offending vehicle, leading to the injury to the deceased, who died in course of treatment at N.M.C.H, Gaya. Md. Matiullah is claimed to be owner of the vehicle. It was also stated that the vehicle was registered by the insurance company vide policy bearing No. 170907/31/10/6300004899 being valid from 26.11.2010 to 25.11.2011. It is also claimed by the claimant that the deceased was a student and earning Rs. 100 per day and total compensation amount of Rs. 4,36,500/- was claimed by the claimants.

5. On notice, the Insurance Company as well as the owner of the vehicle appeared and filed their written statements, contesting the claim petition of the claimants for compensation.

6. The application of the Insurance Company under Section 170 of the MOTOR VEHICLES ACT for permission to contest the claim petition was allowed by the Tribunal vide order dated 12.09.2014.

7. On the basis of the pleadings of the parties, the following issues were framed:-

“i. Whether the claim application is maintainable?

ii. Whether the Claimants have any cause of action for the case?

iii. Whether the deceased Sujit Kumar died in a motor accident occurrence on 09.04.2011 at about 6:00 AM on G.T. Road, Kusha More due to rash and negligence driving of the driver of the Tata Magic bearing Registration No. BR-02M-5290?

iv. Whether the driver of the aforesaid Tata Magic has/had valid driving licence at the time of the accident?

v. Whether the aforesaid vehicle was insured with O.P. No. 1, National Insurance Company and is liable to pay the compensation amount, if yes, whether owner of the vehicle violated any terms and conditions of policy or not?

vi. Whether the applicants are entitled to compensation?

vii. Whether the age and occupation, income of the deceased are correct as claimed?

viii. Whether the applicant is entitled to any other relief or reliefs?”

8. During the trial, altogether three claimant witnesses were examined viz., A.W.1- Ramjee Yadav (one of the claimants), A.W.2- Chandramani Devi (also one of the claimants) and A.W.3- Naresh Yadav.

9. During the trial, five documents have been exhibited viz., Ext.1- Certified Copy of the FIR, Ext.2- Charge- sheet, Ext.3- Policy Bond of alleged vehicle, Ext.4- Photocopy of the owner book smart card and Ext. 5- Postmortem report