BRANCH MANAGER NEW INDIA ASSURANCE CO LTD Vs. KUSHA RAI
HIGH COURT OF SIKKIM
Branch Manager, New India Assurance Co Ltd
KUSHA RAI AND ORS
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(1.) By this appeal filed under Section 173 of the Motor Vehicles Act, 1988, the Appellant seeks to challenge the judgment dated 14th October, 2009 in Motor Accident Claims Tribunal Case No. 5 of 2006 by which death compensation of Rs. 8,89,500 was awarded in favour of the claimants who are the Respondents Nos. 1 and 2 in the present appeal the liability of which was fixed against the Appellant. The Respondent/claimant No. 1 is the wife and the Respondent/claimant No. 2 is the minor child of the deceased.
(2.) The facts of the case relevant for the purpose of disposal of this appeal are that on 26th June, 2003 the deceased Kul Bahadur Rai, who was a Class I Government Contractor, while proceeding to Niya Brum, South Sikkim from Lower Rangang by his own vehicle, a Tata truck bearing registration No. SK-03/2127, died on the spot when the truck met with an accident on reaching Robin Bhir near Niya Brum, South Sikkim at about 11.00 a.m. As per the claimants, the deceased at the time of his death, was 52 years old and used to earn an income of Rs. 10,000/- per month. The accident vehicle was insured with the O.P. No. 1, New India Assurance Company Limited. Gangtok, under cover note No. KOL/2002/022173. On the day of the accident it was being driven by O.P. No. 2, Shri Jit Bahadur Biswakarma @ Jiten Kalikotey. On being informed, the police from the Rabongla Police Station registered Rabongla P.S. Case No. 1 (2) 2003 dated 26th February, 2003 under Sections 279/337/304A, I.P.C. against the driver of the vehicle. In the above circumstances, the claimants approached the Motor Accident Claims Tribunal with an application under Section 166 of the Motor Vehicles Act, 1988 praying for award of compensation of Rs. 9,99,500 against the Insurance Company who is the Appellant herein and the driver of the ill-fated truck arrayed as the Respondent No. 3 in the memo of appeal. The claim petition had been contested by the Appellant before the Claims Tribunal on ground which were of formal nature not be necessary to be elucidated as for the purpose of this appeal will appear hereafter. Written objection to the claim petition was filed by the O.P. No. 2 but need not be dealt with as being immaterial for the purpose of adjudication of the present appeal. The Motor Accident Claims Tribunal framed the following issues on the basis of the pleadings of the parties:
I. Whether the deceased was a Government Contractor carrying construction work at the relevant time at Yangang, South Sikkim
II. Whether the vehicles involved in the accident was a goods vehicle owned by the deceased.
III. Whether the deceased was travelling in the said vehicle carrying stones from the quarry to the site of construction.
IV. Whether the vehicle was insured with the O.P. No. 1
V. Whether the claimants have locus standi to file the instant claim petition
VI. Whether the O.P. No. 2 had a valid licence to drive the vehicle involved in the accident Whether he was driving the vehicle at the time of accident.
VII. Whether the O.P. No. 1 was liable to pay the compensation
(3.) Of the above, issues No. 2 and 3 are material as being relevant for the purpose of disposal of this appeal, since before this Court the only ground raised for assailing the award holding the Appellant liable for payment of the compensation is that, as the deceased was the owner of the Tata Truck which met with an accident causing his death, he was not covered under the Insurance Policy. The Motor Accidents Claims Tribunal after considering the evidence on record decided the issues in favour of the claimants/Respondent Nos. 1 and 2, having found that the truck involved in the accident was a goods vehicle owned by the deceased, and that the deceased at the relevant time was travelling in the said vehicle carrying stones from the quarry to his work site.;
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