J.K. Ranka, J. - (1.) THE instant civil misc. appeal has been filed by the appellants -claimants under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 7.12.2006 passed by the MACT, Gangapur City, District, Sawai Madhopur in claim case No. 81/2005, whereby the Tribunal while partly allowing the claim of the claimants, awarded a sum of Rs. 4,23,500/ - as total compensation to the claimant appellants.
(2.) THE brief facts as emerging on the face of record are that two claim petitions came to be filed by the wife, a daughter, a son, mother and brother of deceased Ashok and another by the injured Mukesh brother of the deceased before the Tribunal under Section 166 of the M.V. Act alleging therein that on 10.8.2005 at about 9 -10 in the morning when deceased Ashok and his brother Mukesh were going on a motorcycle from their village to village Khatipura near Sikrai to attend last rite of their relative, the motorcycle was being driven slowly at their side, in the way, from Gangapur City to Nadoli Road before village Kaima, a truck bearing No. R.J.25/G1062 coming from behind which was being driven by non -petitioner No. 1 on wrong side and in a rash and negligent manner with high speed hit the motorcycle from back side and caused accident due to which the pillion rider Ashok died on the spot and Mukesh sustained grievous injuries on his person. It was alleged that the non petitioner No. 1 is responsible for the accident because he drove truck bearing No. R.J.25/G1062 on wrong side and in a rash and negligent manner. At the time of accident the deceased was 35 years of age and was a healthy person. He was labourious and having a bright future but due to his untimely death the claimants were deprived of his income all the time to come and on account of that the claimants have suffered huge mental agony and economic loss. The claimant No. 1 suffered loss of consortium and her children have become orphan and also deprived of his love and affection. The non -petitioners Nos. 4 & 5 have suffered loss of love and affection. The claimants of deceased Ashok claimed a sum of Rs. 24,31,800/ - as compensation on account of accidental death of deceased Ashok from Non -petitioner No. 1 the driver, who drove the truck bearing No. R.J.25/G 1062 on wrong side and in a rash and negligent manner causing the said accident, nonpetitioner No. 2 the owner of the vehicle and nonpetitioner No. 3 the Insurance Company with whom the vehicle was insured jointly and severally. The non -petitioners Nos. 1 & 2 vehemently contested the claim petition and stated in their reply that the claimants have filed the claim petition on the basis of false and baseless averments. It was pleaded that no accident took place on 10.8.2005 by truck bearing No. R.J.25/G1062. It was alleged that the injured Mukesh himself has stated in his Parcha Bayan that while he was over taking his motorcycle bearing No. D.L.3S.V.8924 before the truck bearing No. R.J.25/G1062 the accident occurred. It was alleged that while overtaking, the driver of the motorcycle lost control of the vehicle due to which accident took place. It was pleaded that in the accident the truck did not hit the motorcycle from behind and if the motorcycle was hit from back side then certainly the back side of the motorcycle should have been damaged from back side but it was not as such. It was pleaded that the truck of the non -petitioners did not wrongfully cause accident, therefore, in the accident the truck has been wrongly involved. It was further pleaded that at the time of accident, the driver of the motorcycle did not possess legally valid licence and accident occurred due to negligence of the driver of the motorcycle, therefore, the Insurance Company is not liable to pay the compensation. It was also pleaded that the claimants have made an exorbitant claim. Ultimately, in the reply it was stated that the truck bearing No. R.J.25/G1062 was insured and if for any reason the non -petitioners No. 1 & 2 are held liable then on account of vehicle being insured, the award should be passed against the non -petitioner No. 3 Insurance Company. The non -petitioner No. 3 Insurance Company vehemently contested the claim petition and stated in their reply that at the time of accident the driver of the vehicle was not having legally valid licence and the driver and owner of the vehicle have violated the conditions of the insurance policy. It was pleaded the claimants have made an exorbitant claim. The driver of the motorcycle and its insurance company have not been made a party, therefore, the claim petition is not maintainable. It was alleged that the accident took place due to negligence & fault of the driver of the motorcycle and there is no fault or negligence on part of the driver of the truck. Ultimately it was prayed that if for any reason the Insurance Company is held liable for payment of compensation then in that condition the compensation should be payable on contributory basis and it will be paid in accordance with the terms and conditions of the insurance policy and as per the provisions of the M.V. Act. In the last, the Insurance Company prayed for dismissal of the claim petition.
(3.) THE Tribunal after hearing arguments of the counsel for both the parties, framed as many as 5 issues including the issue of relief. The claimants in support of their claim got recorded statements of A.D. 1 claimant Shimla herself, A.D. 2 Mukesh and also produced 54 documents in documentary evidence. The non -petitioners in rebuttal produced N.A.D. 1 Liyakat Ali as their witness. The Tribunal after hearing both the parties and perusing the evidence and material available on record passed the impugned award granting a total compensation of Rs. 4,23,500/ - under the different heads. Hence this appeal.;