- (1.) THIS appeal is directed against the judgment and award dated 15.12.2012 passed by Motor Accident Claims Tribunal (I), Jodhpur ('the Tribunal'), whereby for the death of one Annaram, the Tribunal has awarded a sum of Rs. 2,92,500/ - alongwith interest @ 8.5% p.a. from the date of application i.e. 26.11.2009 and the Insurance Company has been exonerated from liability to pay the compensation.
(2.) THE facts in brief may be noticed thus : the application under Section 163A of the Motor Vehicles Act, 1988 ('the Act') was filed by Smt. Antri Devi, mother of the deceased Annaram with the averments that on 20.8.2009, the deceased was riding on motor -cycle RJ -19 -SL -1039 when the same collided with a truck resulting in fatal injuries to the said Annaram. It was claimed that the deceased was aged 23 years had a valid driving licence and while working as a driver, he used to earned Rs. 40,000/ - annually. A reply to the application was filed by the appellant, owner of the motor -cycle disputing its liability to pay compensation as no accident had occurred from the said motor -cycle. The insurer also filed its reply and denied most of the allegations, it was contended that the deceased cannot be termed as third party so as to saddle the Insurance Company with the liability to pay the compensation. The Tribunal framed four issues. On behalf of the claimant, claimant Smt. Antri Devi was examined and 16 documents were exhibited. On behalf of the Insurer, one Shri Manibhushan Singh appeared in the witness - box and policy (Ex. -A/1) was exhibited. After hearing the parties, the Tribunal came to the conclusion that the accident occurred by use of motor -cycle RJ - 19 -SL -1039, which resulted in death of Annaram. While considering the issue relating to liability of Insurance Company, the Tribunal came to the conclusion that the policy -in - question was 'act only policy' and no premium was charged by the Insurance Company and therefore, the Insurance Company was not liable to make payment of compensation. The Tribunal observed that the Insurance Company has not charged any premium for the employee and as the deceased was not a third party, Insurance Company was not liable to make payment of compensation. The Tribunal assessed the compensation at Rs. 2,92,500/ - and awarded interest as noticed hereinbefore.
(3.) IT is submitted by learned counsel for the appellant that the finding recorded by the Tribunal on issue No.2 relating to the liability of the Insurance Company is ex -facie incorrect. It was submitted that a bare look at the policy (Ex. -A/1) would indicate that the same was package policy and as such, the exoneration of the Insurance Company by treating the policy as 'act only policy' is on its face incorrect and as such, the finding recorded by the Tribunal exonerating the Insurance Company deserves to be set -aside. In the alternative, it was submitted that even if the policy is 'act only policy', still the Insurance Company was required to satisfy the award to the extent required under Section 147(2) of the Act as laid down by the Hon'ble Supreme Court in National Insurance Company Limited v. Prembai Patel & Ors. : 2005 ACJ 1323 and Andhra Pradesh High Court in National Insurance Company Limited v. D. Sivasankar and Anr. : 2007 ACJ 291. Per contra, learned counsel appearing for the respondent - Insurance Company supported the award impugned. It was submitted that from the policy (Ex. -A/1), it is apparent that the same was act only policy and therefore, the liability of the deceased was not covered as he was not a third party. Reliance was placed on judgments of the Hon'ble Supreme Court in the case of Ningamma & Anr. v. United India Insurance Company Limited : (2009) 13 SCC 710 and New India Assurance Company Limited v. Sadanand Mukhi & Ors. : (2009) 2 SCC 417.;