Allahabad High Court
U.P.S.R.T.C. Thru' Regional Manager vs Rajesh Kumar Kushwaha And Another on 1 July, 2010
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
Court No. - 1 Case :- FIRST APPEAL FROM ORDER No. - 1862 of 2010 Petitioner :- U.P.S.R.T.C. Thru' Regional Manager Respondent :- Rajesh Kumar Kushwaha And Another Petitioner Counsel :- M.M. Sahai Hon'ble Rakesh Tiwari,J.
Heard counsel for the defendant appellant and perused the record.
This appeal has been filed by U.P. State Road Transport Corporation through its Regional Manager challenging the validity and correctness of the award dated 23-2-2010 passed by the Motor Accident Claims Tribunal/ Additional District Judge Court No.4, Firozabad in M.A.C.P. No. 53 of 2007 on the ground that the accident is said to have occurred on 2-1-2007 between the bus of U.P.S.R.T. C. defendant/appellant and Thela of the plaintiff/ claimant/ respondent Sri Rajesh Kumar Kushwaha in which claimant sustained injuries. The ground of contention is that the accident occurred due to contributory negligence of the claimant but this aspect of the matter has not been considered by the Tribunal and that the Tribunal has wrongly disbelieved the statement of the driver of the bus as such the findings of the Tribunal based on surmises and conjunctures are liable to be set aside. The order is also challenged on the ground that the driver of the bus had not been made a party in the proceeding in the court below and in any case the compensation awarded is highly excessive.
Claim petition was filed by the respondents claiming a sum of Rs. 5 lacs which was contested by the defendant/ appellant on the ground that the claimant was also responsible for the incident.
The contention of Sri M.M. Sahai, learned counsel for the defendant / appellant is that while awarding excessive compensation, Tribunal has also misdirected itself by entitling the Insurance Co. to recover the amount of claim paid by it to the claimant, from the defendant/ appellant. According to him, the Insurance Co. had insured the bus which was valid at the time of accident as such the Tribunal could not have burdened the defendant /appellant with the compensation. The bus being wholly insured and no terms and condition of insurance having been violated by the defendant /appellant the burden of compensation could not be shifted upon the appellant only on the ground that it appeared to the Tribunal that road permit was old.
The matter requires scrutiny.
Considering the facts and circumstances of the case, it is provided that the Oriental Insurance Co. Ltd. through its Divisional Manager, Divisional Office, Sanjay Palace, Agra , defendant/ respondent shall pay the claimant Rajesh Kumar Kushwaha, plaintiff/ claimant/ respondent the amount as awarded by the Tribunal, within a period of 15 days from today. However, the amount paid by the Insurance Co. to the plaintiff/ claimant/ respondent shall not be recovered from the appellant till further orders of the court.
Issue notice to the claimant as well as defendant /respondent returnable at an early date.
Counter affidavit may be filed within a period of 8 weeks from today. Rejoinder affidavit, if any, shall be filed within three weeks thereafter.
List after expiry of the aforesaid period before appropriate bench.
Order Date :- 1.7.2010 skv