- (1.) HEARD learned counsel for the appellant-Insurance Company.
(2.) THIS appeal has been filed by the appellant- Insurance Company against the judgment and award dated 28.02.2012 whereby the learned M.A.C.T., Hanumangarh while deciding the Claim Case No.142/2010 has awarded compensation to the tune of Rs.3,91,000/- for the death of deceased Bhagwana Ram, who was the sole bread winner of family of appellants-claimants, under Section 163-A of the Motor Vehicle Act, 1988 (for short, hereinafter referred to as 'Act of 1988'). Briefly stated, the facts of the case are that the sole bread winner of the family of the appellants-claimants lost his life in an accident, which took place on 21.12.2009 at about 09.00 PM when the deceased Bhagwana Ram, driving the Bolero Jeep (RJ-31- UA-0593), owned by the fifth respondent (Bachan Singh), coming from Rawatsar to Pallu. However, when the said Bolero Jeep reached near Purabsar Bus Stand, a suddenly stray animal came in front of the jeep, and resultantly the driver of the Bolero Jeep lost his control over the jeep and it collided to a Truck (RJ-31-GA-3022) which was standing on the side of the road and sustained injuries. On account of injuries suffered the said Bhagwana Ram died. The claimants-appellants, who are the dependents of the deceased driver claiming compensation, filed claim petition before the learned Tribunal claiming compensation of Rs.17,96,204/-, and the same was decided by the learned Tribunal vide the judgment dated 28.02.2012 awarding compensation to the tune of Rs.3,91,000/- under Section 163-A of the Act of 1988. Mr. Jagdish Vyas, learned counsel for the appellant- Insurance Company relying upon a Supreme Court decision in the case of National Insurance Co. Ltd. Vs. Sinitha & Ors. reported in MACD 2011 (SC) 204, submitted that even in the case/s under Section 163-A of the Act, since the driver of the vehicle himself was negligent in driving the vehicle, therefore, the claim cannot be reimbursed by the Insurance Company. He further submitted that FIR No.140/2009 with Police Station- Pallu, was filed against the same driver but on account of death of driver, final report in negative was filed by the investigation agency. He also submitted that the claimants have failed to prove that accident did not happen on account of own negligence of the driver himself and, therefore, the learned Tribunal has not decided the question of negligence at all in the present case and consequently, the award deserves to be set aside. Having heard learned counsel for the appellant and upon perusal of the reasons given in the impugned judgment and award of the learned Tribunal, this Court finds no force in the present appeal. There was one more person, namely, Beerbal Ram, who was accompanying in the said Jeep with the deceased Bhagwana Ram, and in that accident he also sustained injuries; and the said Beerbal Ram surprinsgly does not appear to have been examined at all, either by the investigating officer or by the Tribunal. Obviously, if the insurance company wanted to prove the negligence of the driver of the Bolero Jeep, the burden of proving the same was on the appellant- Insurance Company, and it could have examine the said eye witness, namely, Beerbal Ram, who was accompanying with deceased Bhagwana Ram, which opportunity has not been availed by it. No negative burden of proof could lie on the claimants in this regard.
(3.) THEREFORE, the appellant- Insurance Company cannot take advantage of the alleged failure of the claimants to produce any evidence of the witness in this regard. It was for the Insurance Company to summon the only eye witness, namely, Beerbal Ram, who suffered injuries in the same accident. As against this, learned counsel for the appellant- Insurance Company relied upon the statements of NAW Nos. 1 and 2, who was the witnesses of the preparation of the site plan and the NAW.1 lodged FIR. The finding of facts returned by the learned Tribunal that in these circumstances that the accident had taken place by the use of motor vehicle and consequently, the dependents of the deceased Bhagwana Ram are entitled to receive the compensation, does not require any interference by this Court. Accordingly, the present appeal filed by the Insurance Company is found to be devoid of any merit and the same is dismissed. No costs. A copy of this order be sent to the respondents and learned Tribunal forthwith. No costs. ;