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2013 DIGILAW 652 (RAJ)

United India Insurance Co. Ltd. v. Sunita

2013-04-02

ALOK SHARMA

body2013
JUDGMENT 1. - This civil misc. appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed against the award dated 10.08.2007, passed by the learned Judge, MACT (District Judge), Jhunjhunu in MACT Case No. 430/2006, titled Smt. Sunita & Anr. v. Raj Kumar & Ors. , whereby the learned Tribunal has awarded an amount of Rs. 7,00,000/- as compensation to the claimants-respondents Nos.1 & 2 along with interest @ 8% p.a. from the date of filing of the claim petitioner till the payment of the compensation and fixed the liability of all the non-claimants i.e. the appellant-Insurance Company and respondent Nos.3 to 6, for the payment of compensation jointly and severally. 2. The brief facts of the case are that a claim petition was filed by the claimants-respondent Nos.1 & 2 (hereinafter 'the claimants') under Section 166 of M.V. Act, 1988 before the Motor Accident Claims Tribunal (District Judge), Jhunjhunu (hereinafter 'the learned Tribunal') stating therein that on 26.12.2005, the deceased Ashok Kumar was travelling on a motorcycle bearing Registration No. RJ-18/1M-8284 along with rider thereof from Surajgarh to Kasni. At the first crossing, another motorcycle bearing Registration No. HR-20/C-6167 came from the opposite direction being rashly and negligently ridden and hit the motorcycle on which the deceased Ashok Kumar was travelling. In spite of being taken to Chirawa Hospital, from where Ashok Kumar (now deceased) was referred to S.M.S. Hospital, Jaipur, where he died on 14.01.2006 during the course of treatment. The report of the accident was lodged at the Police Station and an FIR registered. After investigation, charge-sheet was filed against the riders of both the motorcycles involved in the accident finding the case of composite negligence. It was further stated in the claim petition that the motorcycle No. RJ-18/1M-8284 was being ridden by respondent No. 3 (non-claimant No. 1), it was owned by the respondent No. 4 (non-claimant No. 2) and was insured with the appellant-Insurance Company (non-claimant No. 3) while motorcycle No. HR-20/C-6167 was being ridden by respondent No. 5 (non-claimant No. 4) and it was owned by respondent No. 6 (non-claimant No. 5). The respondent Nos.5 & 6, the rider and the owner respectively of motorcycle No. HR-20/C-6167 remained ex-parte. 3. The respondent Nos.5 & 6, the rider and the owner respectively of motorcycle No. HR-20/C-6167 remained ex-parte. 3. The insurer of motorcycle No. RJ-18/1M-8284, i.e. the appellant-Insurance Company (non-claimant No. 3 before the learned Tribunal) filed a reply to the claim petition and denied the material facts stating in defence that there was no negligence on the part of the rider of motorcycle No. RJ-18/1M-8284 which was insured with it. It was further stated that the risk of pillion rider would not be covered under the policy and since the deceased Ashok Kumar was a pillion rider, the appellant-Insurance Company was not liable for compensation claimable on the death of Ashok Kumar. 4. On the pleadings of the parties, the learned Tribunal framed four issues. Two witnesses were produced on behalf of the claimants. Similarly two witnesses produced on behalf of the non-claimants. On consideration of the matter, the impugned award dated 10.08.2007 was passed by the learned Tribunal wherein an amount of Rs. 7,00,000/- was awarded as compensation payable to the claimants along with interest @ 8% p.a. from the date of claim petition being filed till the date of payment. Liability of all non-claimants was fixed jointly and severally under the award dated 10.08.2007. 5. Counsel for the appellant-Insurance Company has submitted that the accident of two motorcycles bearing Registration Nos. RJ-18/1M-8284 and HR-20/G-6167 was at best a case of contributory negligence and instead of passing an award in favour of the claimants jointly and severally, the learned Tribunal ought to have apportioned the compensation payable to the claimants in equal measure between the owner, rider and the insurer of the motorcycle No. RJ-18/1M-8284 and the owner and the rider of the motorcycle No. HR-20/C-6167. He submits that without apportionment having been made in spite of negligence of the riders of two motorcycles in issue, the claimants are likely to recover the award amount only from the appellant-Insurance Company. It is submitted that merely because the motorcycle No. HR-20/G-6167 was not insured, it should not ensure to the benefit to the rider and the owner of the said motorcycle. It is submitted that merely because the motorcycle No. HR-20/G-6167 was not insured, it should not ensure to the benefit to the rider and the owner of the said motorcycle. Counsel further submits that in the event, this Court were not to interfere in this appeal and modify the award dated 10.08.2007 directing the appellant-Insurance Company was only liable to an extent of 50% of the award amount, the appellant-Insurance Company would be forced to take proceedings against the owner and the rider of the motorcycle No. HR-20/C-6167, which would only entail multiplicity of proceedings to the benefit of the none. 6. Per contra, counsel for the claimants (respondent Nos.1 & 2 before this Court) would submit that the insurance policy of motorcycle No. RJ-18/1M-8284 was a comprehensive/package policy wherein a special contract had been entered into for covering the risk of injury to others aside of the owner such as the pillion rider. Extra premium had been paid for the purpose. Counsel submits that from the evidence on record, the learned Tribunal has found that the accident, which took place on 26.12.2005 between two motorcycles bearing Registration Nos.RJ-18/1M-8284 and HR-20/G-6167 was consequent to the composite negligence of the two riders of the two motorcycles in issue. It is submitted that in a case of a composite negligence, a claim can be laid and pursued against both or one of the tortfeasor-es. It is further submitted that the learned Tribunal having held that the case of accident was one of composite negligence, the award dated 10.08.2007 making the compensation payable by the negligent parties/their insurers, if any, severally and jointly is legal and valid. 7. Having heard the counsel for the appellant-Insurance Company and the respondents-claimants and having perused the impugned award dated 10.08.2007, I am of the considered view that there is no occasion for this Court to interfere with the award dated 10.08.2007 passed by the learned Tribunal. The learned Tribunal has come to a specific finding that the insurance policy in respect of motorcycle No. RJ-18/1M-8284 was a comprehensive / package policy wherein a special contract had been entered into covering the pillion rider who was thus entitled to compensation in the event of any injury / death from the rash and negligence to the rider of the insured vehicle. I therefore find no substance in the case of the appellant-Insurance Company that merely because, Vinod Kumar was a pillion rider, the appellant-Inrusane Company would not be responsible for payment of compensation determined by the learned Tribunal under its award dated 10.08.2007. I also find no force in the argument of the counsel for the appellant-Insurance Company that the learned Tribunal in passing the award dated 10.08.2007 ought to have apportioned the liability between the rider, owner and insurer of motorcycle No. RJ-18/M-8284 on the one hand and owner and rider of motorcycle No. HR-20/C-6167 on the other hand. In making the aforesaid argument, counsel for the appellant-Insurance overlooks the differences between the cases of contributory negligence and composite negligence. In a case of composite negligence as found by the learned Tribunal, it was legal and valid for the Tribunal to direct while passing the award that the compensation be recoverable by the claimants jointly and severally from each of the non-claimants in the claim petition before the learned Tribunal. 8. I therefore find no ground to interfere with the award dated 10.08.2007, passed by the learned Tribunal. Consequently, the civil misc. appeal is without force and the same is dismissed. 9. It is however made clear that the appellant-Insurance Company would be free to take proceedings in accordance with law for recovery of amount to an extent of 50% of the award amount from the owner and rider of the motorcycle No. HR-20/C6167 in the event the whole of the award amount under the award dated 10.08.2007, passed by the learned MACT (District Judge), Jhunjhunu is covered from it.Appeal dismissed. *******