Mahesh Chandra Sharma, J. - (1.) UNITED India Insurance company Ltd. (in short insurance company) has filed this appeal under Sec. 173 of the Motor Vehicles Act against the award dt. 11.11.2011 passed by Judge, Motor Accident Claims Tribunal, Ajmer (in short MACT) in Claim Case No. 636/2010 whereby the claim petition filed by the claimants was allowed and they were awarded compensation in the amount of Rs. 23,74,200/ -. 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 26.8.2010 at about 5.30 p.m. Girdhari Lal was standing at Jatia Chowk awaiting a transport vehicle for going Nasirabad, but he was hit by the Jeep No. RJ 26 TA 0123 in the accident. Girdharilal sustained serious injuries and died. Claim petition was filed by the claimants under Sec. 166 of the Motor vehicles Act against, owner, driver and insurance company of Jeep. The defendant No. 1 and 2 did not contest the claim petition, hence ex -parte proceedings were initiated against them. The appellant insurance company submitted its reply stating therein that driver was not having valid and effective driving licence to drive the vehicle and permit to ply the vehicle at the time of accident. The MACT considered that Smt. Radha Devi AW. 1 and Kalu Ram AW. 2 stated in their evidence that at about 5.30 p.m. Girdhari Lal, Kalu Ram and Jaidev were standing at Jatia Chowk awaiting a transport vehicle for going to Nasirabad. But Girdhari Lal was hit by said jeep while they were standing at Kachha at the side of the Road. The driver of jeep came and took his vehicle towards wrong side of the road and caused accident. Documents pertaining to police investigation were got exhibited by the evidence of claimants. No evidence in rebuttal was produced by the defendant. Violation of policy condition by plying the vehicle without valid route permit stands proved. The insurance company was exonerated from liability of payment of compensation to claimants but direction for making payment of compensation to the claimants with liberty to recover the same from insured were issued to insurance company. The MACT awarded a sum of Rs. 23,74,200 to the claimants. Mr. Rizwan Ahmed, learned counsel for the appellant insurance company placing reliance on NIA vs. Kusum and UIIV vs. Darshan Singh, , it was argued that it would be travesty of justice, if the insurance company which is directed to pay the amount and face immense difficulties in executing in a decree". Further he has placed reliance on : 2009 (8) SCC 785 NICL vs. Paravathneni & Ors. and has argued that whether insurance company can be compelled to pay compensation to claimants with liberty to recover the same from insured is justified and within the scope of Art. 142 of Constitution of India is yet to be decided by the Supreme Court. It was prayed that in these circumstances no directions can be issued compelling appellant to pay compensation even with liberty to recover the same with insured. The MACT has deducted 1/4th amount towards personal living expenses which is contrary to Schedule II attached with the Act in which deduction of 1/3 amount towards personal living expenses is provided. Award of future prospect is also against provisions of Act. The learned counsel further argued that the amount of Rs. 23,18,000 for loss of income if invested in fixed deposits it will fetch interest about Rs. 2,08,620 per annum which is more than the income being earned by deceased per month.
(3.) MR . Vinay Mathur, learned counsel appearing for the claimants has argued that the MACT has considered the evidence and the documents produced by the claimants and the judgments cited by the counsel. The compensation was rightly awarded to the claimants. The liability of the insurance company to pay the compensation and thereafter recover it from the owner has been rightly fixed.;