- (1.) The United India Insurance Company Ltd. (appellant in S. B. Civil Misc. Appeal No. 570 of 1998 and respondent No.6 in appeal No. No.1255 of 2000 in short the insurance company) has filed the appeal No. 570 of 1998 under section 173 of the Motor Vehicles Act against the award dated 23.5.1998 of the Judge Motor Accident Claims Tribunal Jaipur City Jaipur ( in short MACT) in Claim Case No. 530/1993 awarding Rs. 2,45,000/- to the claimants Smt. Usha S.Pillai, Kumari Ramanna, Janardan Pillai and Smt. Changja Shri Amma (appellants 1 to 4 in appeal No. 1255 of 2000 and respondents 1 to 4 in appeal No. 570 of 1998 ( in short claimants) have filed the appeal No.1255 of 2000 for enhancing the compensation awarded by the MACT. Since both the appeals arise from a common award, it will be proper for this Court to decide the appeals by this common order.
(2.) Brief facts of the case are that on 18.3.1993 Shashidharan Pillai was going on his cycle. When he reached at Queens Road a tractor with trolley bearing No. PUB 9198 dashed with a loading tempo bearing No. RJR 9366. Because of this accident tractor trolley was pushed back and the deceaswed Shashidharan Pillai who was coming behind the tractor trolley was crushed under the tractor. Lateron he died due to above accident. The legal representatives of Shashidharan Pillai filed claim petition. It was alleged in the claim petition that drivers of both the vehicles were rash and negligent in driving of their respective vehicles. They filed the claim petition claiming Rs. 25,40,000 as compensation with 18 % interest. During the course of proceedings the appellant insurance company filed an application on 18.4.95 under section 170 of the Motor Vehicles Act for permission to raise the defence available to driver and owner. The court allowed the application. The MACT vide award dated 23.5.98 held that drivers of both the vehicles were contributory negligent in driving their respective vehicles and therefore held the driver, owner and the insurance company as jointly and severally responsible to pay a compensation amount which was assessed at Rs. 2,45,000/- with 12% interest. It was further ordered that in case the payment is not made within 45 days interest will be charged @ 15%. Challenging the above award the insurance company filed the appeal No. 570 of 1998. For enhancement of the compensation the claimants filed the appeal No. 1255 of 2000 as mentioned above.
(3.) In the appeal filed by the insurance company it has been argued by the learned counsel that the MACT has committed serious error of law and fact in deciding issues 1 to 5 against the insurance company. From the evidence of the witnesses as well as form the documentary evidence including FIR it is clear that the tempo RJR 9366 which was insured with the insurance company was not involved in the accident. PW.2 Gopal stated that the accident occurred immediately after the deceased has taken a turn towards Queens Road. This witness has not stated that Tempo RJR 9366 has caused accident to cyclist. DW.3 Rais Khan has stated that no part of the loading tempo was touched the cyclist of his cycle. NAW 1 Girdharilal Yadav, who conducted the investigation stated that the accident was result of negligence of driver of tractor trolley. NAW Asaraf who is the driver of the loading tempo has stated that tractor was going on a wrong side and after causing accident to his tempo the tractor went forward and in this process the tractor crushed the cyclist. The MACT has committed error in giving award of Rs. 2,45,000/- in favour of the claimants. The MACT has committed error in using the multiplier of 18. The MACT in an arbitrary manner has held the deceased earning Rs. 1500/- per month by tailoring business.;