UNITED INDIA INSURANCE CO LTD Vs. SUMITRA DEVI

JUDGEMENT

(1.) This case came up on 10.7.2002 for consideration of application filed by respondent Nos. 1 to 6, claimants for the release of the amount deposited in this writ and two of them, viz., Yogita Mehta (respondent No. 4) and Yogesh Mehta (respondent No. 5) having attained majority. At that time learned counsel for the parties jointly submitted that instead of considering the application for release, this matter needs to be heard finally and disposed of at this stage. Mr. Thakur, learned counsel for respondent Nos. 1 to 6, hereinafter referred to as the claimants, submitted that he does not want to file any reply to the writ petition, but will challenge the right of the petitioner to maintain this writ under Articles 226/227 of the Constitution of India challenging the award that too on quantum, and will support the award on the basis of materials on record of the Tribunal below. It was for this reason that we finally heard the arguments in this case and reserved the judgment without waiting for the reply of the respondent Nos. 1 to 6.

(2.) Before coming to the facts of the case we may observe that petitioner insurance company has challenged the award only on its quantum and reason pleaded for maintaining this writ petition is that petitioner cannot challenge the award impugned on quantum in view of section 149(2) of. the Motor Vehicles Act, 1988 by filing an appeal under section 173 thereof.

(3.) Facts as emerge from the file of the -writ petition, as well as from the record of the learned Tribunal below, are that one Pratap Singh was the husband of claimant No. 1 and father of other claimants. He was travelling in truck bearing registration No. HP 21-0407 on 18.9.1996 along with 151 boxes of apple and 3 jute bags also of apple as owner of goods. He had hired truck from his village to Delhi for carriage of apples. When the truck reached near Taila-Habban Road, Rajgarh, District Sirmour, because of rash and negligent driving on the part of driver (who also died in the accident), truck rolled down from road. In this accident Pratap Singh died. On these averments compensation in the sum of Rs. 10,00,000 including Rs. 70,000 for damage of apple boxes was claimed for with costs and interest. Respondents when put to notice, filed their replies. Common reply was filed by respondent Nos. 8 and 9, i.e., the owners, and the petitioner insurer filed its separate reply. Respondent Nos. 8 and 9 amongst others admitted place, date and time of the accident, as is evident from their stand in para 8 of the reply. Both of them pleaded that truck in question was insured with the petitioner insurance company. While praying for dismissal of the petition, they urged that since the truck in question was insured with the petitioner, therefore, they are not liable to pay any amount of compensation.