Mahesh Chandra Sharma, J. - (1.) NATIONAL Insurance Company. Ltd. (in short insurance company) has filed this appeal under section 173 of the Motor Vehicles Act against the common award dated 31.1.2012 passed by Judge, Motor Motor Accident Claims Tribunal (Additional District Judge Fast Track No. 6) Jaipur Metropolitan, Jaipur Ajmer (in short MACT) in Claim Case No. 244/2009 (1316/2008) whereby the claim petition filed by the claimants was partly allowed and they were awarded compensation in the amount of Rs. 1,55,000/ -. The facts have been set out in the impugned award and hence I am not repeating the same here except wherever necessary.
(2.) BRIEF facts of the case are that on 11.2.2008 Anil Kumar, who was driving vehicle bearing registration No. RJ 14 CB 7930 died in the road accident when he was going from Jaipur to attend marriage ceremony of his brother Rajesh Kumar, when the said vehicle overturned near Fatehpur, resulting his death along with two others namely Sher Singh and Gulab Singh and resulting in injuries to Vinod Kumar and Satish Kumar. It was alleged that the said accident took place when a Neel Gaay came in front of the said vehicle all of sudden. FIR in regard to said accident was lodged at Police Station Kotwali Fatehpur which was registered as FIR No. 23/2008. The vehicle which was being driven by the deceased was owned by his father and was insured with appellant insurance company. The MACT in relation to the claim petition of the claimants awarded a sum of Rs. 1,55,000 in the common award dated 31.1.2012. Mr. Man Singh Chundawat, counsel appearing for the insurance company has placed reliance on New India Assurance Company Ltd. vs. Sadanand Mukhi & Ors., : (2009) 2 SCC 417, Oriental Insurance Co. Ltd. vs. Smt. Jhuma Saha & Ors., : (2007) 9 SCC 263, and National Insurance Co. Ltd. vs. Sinitha & Ors., ( : 2012 1 ACJ 1 stated that the award of the MACT is absolutely illegal, without jurisdiction and contrary to the facts of the case and well established legal position and as such is liable to be quashed and set aside. It was further argued that the deceased was driving the vehicle at the time of the alleged accident, was son of the insured himself and was driving the said vehicle having stepped into the shoe of the owner and as such in the light of the judgment of the Apex Court in Ningamma & Anr. vs. United India Insurance Company, : AIR 2009 SC 3056 the claim petition filed by the claimants was not maintainable as the deceased did not fall within the purview of Third Party and as such there was no justification before the MACT to burden the insurance company with liability. The MACT committed gross error in considering income of the deceased as Rs. 3,000/ - per month in absence of reliable and trustworthy documentary evidence on record. The learned counsel further argued that none of the claimants were dependent upon the deceased as mother of deceased could not be deemed to be dependent on deceased when her husband is alive and rest of the claimants who are major brother of the deceased can also not be deemed to be dependent upon the deceased and hence compensation awarded being excessive deserves to be reduced. The interest awarded by the MACT at a higher rate is not justified and it can be awarded only from the date of passing the judgment and not from the date of filing of the claim petition.
(3.) MR . Sandeep Mathur, learned counsel appearing for the claimants placing reliance on National Insurance Co. Ltd. vs. Sinitha & Ors., ACJ 2012 Vol. 1 page 1 on which reliance was also placed by the insurance company, has argued that the MACT has considered the evidence and the documents produced by the claimants and the award cannot be said to be per verse. The compensation was rightly awarded to the claimants. The MACT assessed the dependency Rs. 2,70,000/ - but only taken into consideration half of it Rs. 1,35,000/ - deducting the share of the father of the deceased. Thus the award cannot be said set aside as per the rulings cited by the counsel for the insurance company.;