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2003 DIGILAW 534 (JHR)

NATIONAL INSURANCE CO. LTD v. ASHOK KUMAR CHAUHAN

2003-04-25

AMARESHWAR SAHAY, GURUSHARAN SHARMA

body2003
Judgment : GURUSHARAN SHARMA, J. ( 1 ) ON 10. 5. 91, ashok Kumar Chauhan, son of Bhaiya chandra Kishore Nath Sari of the village oaina, while on the way to Lohardaga on a motor cycle (BR 14-S 1045) along with a pillion rider Manoj Kumar Singh got proper signal from driver of the bus (BR 14-H 6008) going ahead but while overtaking, the said bus all of a sudden dashed the motor cycle. Meanwhile an autorick-shaw (BR 14-A 1771) came from opposite direction in a rash and negligent manner and at excessive speed and further dashed the motor cycle and thereafter, the bus again dashed it. In this process both the occupants of motor cycle received injuries. ( 2 ) ASHOK Kumar Chauhan sustained fracture in his right leg and filed application under section 166 of the Motor Vehicles Act, 1988 (hereinafter to be referred to as the Act) for compensation which was registered as Compensation Case No. 128 of 1991, before the Judicial Commissioner, Ranchi. United India Insurance Co. Ltd. , Main Road, Ranchi, as insurer of both the autorickshaw as well as the motor cycle and Oriental Insurance Co. Ltd. as insurer of the bus were made parties. ( 3 ) UNITED India Insurance Co. Ltd. appeared and filed written statement stating, inter alia, that in absence of the particulars of the insurance policy they were not in a position to admit whether those vehicles were actually insured with them. It was further pleaded that the claimants must disclose policy particulars of each of the vehicles separately, else the insurance companys name should be expunged from the cause title. ( 4 ) THE owner of the bus appeared and filed written statement but its insurer did not appear and the owner of the autorickshaw too did not contest the claim case. ( 5 ) THE Claims Tribunal, on the basis of evidence on record, assessed total amount of Rs. 2,70,000 payable as compensation to the claimant for the injury sustained by him in the said accident. The Tribunal thereafter, directed the insurers of the bus as well as the autorickshaw to pay half and half of the compensation amount. ( 6 ) UNITED India Insurance Co. 2,70,000 payable as compensation to the claimant for the injury sustained by him in the said accident. The Tribunal thereafter, directed the insurers of the bus as well as the autorickshaw to pay half and half of the compensation amount. ( 6 ) UNITED India Insurance Co. Ltd. has preferred the present appeal under section 173 of the Act and challenged the award on the ground that injured-claimant, while overtaking the bus was also responsible for the said accident, it was also contended that the amount of compensation awarded was highly excessive. ( 7 ) THE owner of the autorickshaw has appeared in this appeal and filed counter-affidavit stating, inter alia, that his autorickshaw was insured at the relevant time with National Insurance Co. Ltd. for the period between 13. 8. 1990 and 12. 8. 1991 and a photocopy of the said insurance policy was annexed thereto as Annexure-1. ( 8 ) THE appellant United India Insurance co. Ltd. also filed a petition purporting to be under Order XLI, rule 27 of the Civil procedure Code to admit the said insurance policy of the autorickshaw as additional evidence in this appeal. ( 9 ) THIS court thereafter, issued notice to national Insurance Co. Ltd. On appearance, National Insurance Co. Ltd. filed a petition for leave to be added as appellant in this appeal. It was admitted that the autorickshaw was duly insured at the time of accident with them. ( 10 ) HENCE, National Insurance Co. Ltd. was allowed to be substituted as appellant in place of United India Insurance Co. Ltd. in this appeal and United India Insurance co. Ltd. was transposed as respondent No. 6, being insurer of the motor cycle. ( 11 ) MR. P. C. Roy, the learned counsel for the appellant, National Insurance Co. Ltd. submitted that this insurance company was never impleaded as party in the claim application and, therefore, it was unaware of involvement of the autorickshaw in the accident in question and the impugned award was passed by the Tribunal ex parte directing payment of compensation by the insurer on behalf of owner of the autorickshaw. Ltd. submitted that this insurance company was never impleaded as party in the claim application and, therefore, it was unaware of involvement of the autorickshaw in the accident in question and the impugned award was passed by the Tribunal ex parte directing payment of compensation by the insurer on behalf of owner of the autorickshaw. It was further submitted that according to claimant, he was hit by the bus and thereafter by the autorickshaw and as such contribution of the driver of autorickshaw in the accident was far less than driver of the bus, when the claimants right leg was crushed by it resulting into multiple fractures therein. Hence, order of the Tribunal directing the insurer of the autorickshaw to pay 50 per cent of the compensation amount was not justified. According to mr. Roy, for non-examination of driver of the bus, the Tribunal ought to have drawn adverse inference against the owner of the bus and entire liability should have been thrust on him. Mr. Roy further submitted that since the insurer of autorickshaw in absence of its owner could not get opportunity to contest the claim case, the case may be remitted to the Tribunal for a fresh decision after giving opportunity to the insurance company under section 170 of the Act to contest the case. ( 12 ) IT is true that appellant insurance company was not a party before the Tribunal and it was also not disclosed there that, in fact, the autorickshaw was insured with National Insurance Co. Ltd. It came to be known for the first time during pendency of the present appeal when the owner of the autorickshaw appeared and filed counter-affidavit annexing a photocopy of the insurance policy and now the admitted position is that the autorickshaw was duly insured with National Insurance Co. Ltd. at the time of the accident. ( 13 ) WE find that claimant had given a clear picture of the circumstances under which the accident in question took place. Ltd. at the time of the accident. ( 13 ) WE find that claimant had given a clear picture of the circumstances under which the accident in question took place. No doubt the motor cycle was hit by the bus first, while it was overtaking the bus, but in the meantime, the autorickshaw came from opposite direction in a very rash and negligent manner and at excessive speed and further dashed the motor cycle, as a result of which the motor cycle and its occupants fell down on the road and right leg of the claimant was crushed by the bus. ( 14 ) IN such circumstance, taking into consideration the whole picture of the occurrence we are not inclined to accept the submission of Mr. Roy that the root cause of accident being the first touch given by the bus to the motor cycle and the bus being a heavy vehicle in comparison to the autorickshaw, its owner ought not have been made liable to pay 50 per cent of the compensation amount and utmost he could have been directed to pay 1/3rd of the compensation amount. ( 15 ) THE claimant in his deposition as aw 1 stated that the accident took place on account of negligence of both the drivers of the autorickshaw as well as the bus. Hence, keeping in view of the sequence of events leading to the accident, in our view as the autorickshaw was coming from the opposite direction in a rash and negligent manner and at excessive speed, it dashed the motor cycle resulting into fall of the occupants thereof on road, which gave rise to second hit by the bus. So the driver of autorickshaw also contributed to the extent of 50 per cent in accident, wherein the claimant sustained injury. ( 16 ) THE accident took place more than 12 years ago and in our opinion that no purpose will be served even if the matter is remitted to the Tribunal for a fresh decision after giving opportunity to the appellant insurance company to lead evidence in the claim case. We find no reason to interfere with the impugned judgment and award. ( 17 ) THE Tribunal also directed the insurers of the bus as well as autorickshaw to pay interest at the rate of 18 per cent per annum, if the award amount was not paid within 2 months. We find no reason to interfere with the impugned judgment and award. ( 17 ) THE Tribunal also directed the insurers of the bus as well as autorickshaw to pay interest at the rate of 18 per cent per annum, if the award amount was not paid within 2 months. The claimant has already received 50 per cent, i. e. , Rs. 1,35,000 with interest from the insurer of the bus and Rs. 25,000 deposited in this appeal, vide challan No. J-114 dated 27. 7. 1995 under proviso to section 173 of the Act, on behalf of the owner of the autorickshaw by united India Insurance Co. Ltd. Pursuant to interim order dated 10. 3. 1997, United india Insurance Co. Ltd. has further deposited a sum of Rs. 15,000 in Certificate case No. 17 (M) of 1994-95 which is said to be lying there. Now instead of United india Insurance Co. Ltd. , 50 per cent of the award amount, i. e. , Rs. 1,35,000 is payable by National Insurance Co. Ltd. , the insurer of the autorickshaw. It is also clarified that National Insurance Co. Ltd. shall pay rs. 1,10,000 to the claimant within one month and Rs. 25,000 to United India Insurance Co. Ltd. Since National Insurance co. Ltd. was not made party in the claim case and it was not award of such accident and/or award of the Tribunal, it cannot be said that payment of award amount to the extent of 50 per cent was knowingly delayed by this insurance company and, therefore, direction of the Tribunal for payment of 18 per cent interest if payment of compensation amount was not made within two months is not applicable to it. The impugned judgment and award are modified as aforesaid. United India Insurance Co. Ltd. is entitled to withdraw Rs. 15,000 which has been deposited in the certificate case, pursuant to the interim order dated 10. 3. 1997 passed in this appeal. However, it is made clear that if National Insurance co. Ltd. failed to pay/deposit 50 per cent amount of the award within a month, the claimant as well as United India Insurance co. Ltd. are entitled respectively to recover the amount with interest at the rate of 9 per cent per annum from the date of filing of claim application as well as from the date rs. 25,000 was deposited in the court till payment. Ltd. are entitled respectively to recover the amount with interest at the rate of 9 per cent per annum from the date of filing of claim application as well as from the date rs. 25,000 was deposited in the court till payment. ( 18 ) IN the result, the appeal is disposed of with modification in the impugned judgment and award. No costs. --- *** --- .