RAKESH TIWARI,VIRENDRA VIKRAM SINGH JJ. - (1.) HEARD learned Counsel for the appellant and perused the record. The instant First Appeal From Order has been preferred challenging the award dated 13th February, 2013 passed by Motor Accident Claims Tribunal/Additional District Judge (Court No. 5), Allahabad in Motor Accident Claims Petition No. 653 of 2011 Smt.Sunita Devi and others v. Sri Vimal Dwivedi and another).The Tribunal by the aforesaid award has partly allowed the claim of the claimants for a sum of Rs. 10,07,000/ - towards compensation with 6% interest from the date of filing of the claim petition i.e. 8th August, 2011 till the date of actual payment.
(2.) BRIEFLY stated background of the case is that an accident had taken place between Tanker No. U. P.66F/9972 and bi -cycle of Kamlesh Prasad Patel. On 28th July, 2011 at about 11.30 a.m. when Kamlesh Prasad Patel was coming to Allahabad on his bi -cycle, the accident was caused in the village Uttamgiri, Chakia in front of the house of Nageshwar under the territorial jurisdiction of Police Station Tharwai, District Allahabad, due to rash and negligent driving of the driver of the aforesaid Tanker. It appears that the driver of the Tanker had applied full break as a result of which the Tanker over turned and Kamlesh Prasad Patel came underneath its body, causing his instanteous death on the spot. At the time of accident, the age of Kamlesh Prasad Patel (since deceased) is claimed to be 47 years, stating him to be an employee in the office of the Executive Engineer, Regional Chief, PWD, Allahabad on a salary of Rs. 18,000/ - per month. The First Information Report of the accident was lodged on 28th July, 2011, were it was registered as Case No.171 of 2011 under Sections 279, 304A of Indian Penal Code in Police Station Tharwai, District Allahabad. The owner of the vehicle Vimal Dwivedi, Opposite Party No. 1 denied the claim stating that the accident has not been caused by Tanker No. 66F/9972 at a time, date and place, as claimed; that the papers of plying the Tanker on road were valid and effective; that it was ensured by the New India Insurance Company Limited on the date of accident and that it was driven by the driver, who had a valid driving license for driving Tanker. Hence, in case, the claim of the applicant is accepted, he should be indemnified by New India Insurance Company, which has insured the Tanker.
(3.) THE New India Insurance Company also denied the averments of the Claim Petition stating that the Company is not liable for payment of any compensation on the ground that the driver of the Tanker was not possessing valid driving license and permit for plying on the route. It is also stated that the Tanker was not fit for plying on the road and in fact it was being plied in violation of the terms and conditions of the Insurance Policy.;