NATIONAL INSURANCE CO LTD Vs. KAMLA PRASAD

JUDGEMENT

(1.) This is an appeal by the insurance company under section 173 of the Motor Vehicles Act, 1988 (hereinafter to be referred to as 'the Act') challenging the order by which compensation has been awarded to the claimants on their application under section 166 of the Act. The order in this appeal will also govern the disposal of connected Misc. Appeal Nos. 844 to 848, 850, 852, 865, 866, 867, 879 and 880 of 2001.

(2.) The facts relevant for the decision of the points raised in this appeal are that on 8.4.1994 there was a collision between a minibus No. MP 20-E 9311 and tanker No. MP 20-A 8447 coming from the opposite directions on the main road near village Nigri. The minibus was owned by nonapplicant No. 1 Prabha Sharma and insured by non-applicant No. 2 United India Insurance Co. Ltd. The tanker was owned by non-applicant No. 3 Subhash Chandra and insured with non-applicant No. 4 National Insurance Co. Ltd. It was being driven by non-applicant No. 5 Heera Bahadur. The driver of the minibus died on the spot. Ten other persons travelling in the minibus also died and five were injured. 16 cases were filed before the Claims Tribunal, Jabalpur. These were consolidated for trial by order dated 12.2.1999. These were contested by the two insurance companies only. The owners of the two vehicles did not file any reply to the applications. The driver of the tanker also did not come forward to contest the cases nor he was examined as a witness to explain how the accident happened. National Insurance Co. Ltd. on its application under section 170 of the Act was granted permission to contest the claims on all the grounds. This order was passed in three cases on 26.11.1999 and as all the cases had been consolidated it would enure to the benefit of this company in all the cases. This appeal has been filed by this insurance company alone and in such a situation the appeal at the instance of the insurance company is maintainable in view of the law laid down by the Supreme Court recently in National Insurance Co, Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC). It has been held that where the insurance company has obtained permission to contest the claims as per section 170 of the Act it can in its appeal under section 173 of the Act challenge the finding of the Claims Tribunal on the question of negligence also.

(3.) The Claims Tribunal has recorded the finding that there was negligence on the part of the tanker driver only which resulted in the accident and, therefore, the order awarding the compensation has been passed against the driver, owner and the insurer of that tanker. According to the Claims Tribunal there was no negligence on the part of the driver of the minibus and, therefore, the owner and the insurer of that bus have been exonerated.