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Uttarakhand High Court · body

2015 DIGILAW 234 (UTT)

NEW INDIA ASSURANCE COMPANY LTD. v. VINITA VERMA

2015-05-11

SERVESH KUMAR GUPTA

body2015
JUDGMENT Hon’ble Servesh Kumar Gupta, J. 1. This judgment will adjudicate both the above-captioned appeals as the same have arisen out of the common judgment and order dated 16.2.2009 rendered by the Motor Accident Claim Tribunal, Haldwani, District Nainital, whereby an award of rupees nine lakhs fifteen thousand was decreed and both the insurance companies were held liable to share such award by fifty per cent each. 2. New India Assurance Company (for brevity, hereinafter referred to as ‘insurance company no. 1’) has challenged the award with the prayer that the entire liability should be fastened to the United India Insurance Company (for short, hereinafter referred to as ‘insurance company no. 2’) for the reasons mentioned herein below. 3. Admittedly, the accident occurred at 26.1.2008 at about 5.15 PM when the deceased Kamal Verma, a pillion rider on the motorcycle being driven by Naveen Arya, was coming from Kaladhungi to Haldwani. The bus insured by the insurance company no. 1 was going from Haldwani to Kaladhungi. By the time, the motorcycle borne youths could have crossed the bus, a Scorpio vehicle strived to overtake the bus from behind and in this process, the Scorpio and the motorcycle borne youths dashed together causing death of the youth duo. The claimants Smt. Vinita Verma along with her two children instituted the claim petition no. 37/2008 for claiming compensation and the Tribunal, after holding both the bus and the Scorpio liable for the same, has awarded the compensation as indicated above. 4. Learned Counsel for the insurance company no. 1 has taken this Court to the pleadings of Smt. Vinita Verma. Para no. 23 thereof adverts that the Scorpio was overtaking the bus and while such overtaking, the motorcycle borne youths dashed with the Scorpio and the bus being disbalanced, turned down in the roadside gorge. 5. his Court feels that in addition to the pleadings, it is better to have a look on the roadside map prepared by the Investigation Officer just within four days of the incident. Specific place has been shown where the bus being in its extreme left inasmuch as it fell down in the roadside ditch. So, it is amply clear that in order to let pass the Scorpio coming from behind and to save the prospective accident, the bus driver did his maximum which he could have done. Specific place has been shown where the bus being in its extreme left inasmuch as it fell down in the roadside ditch. So, it is amply clear that in order to let pass the Scorpio coming from behind and to save the prospective accident, the bus driver did his maximum which he could have done. It is obvious that the accident occurred from front between the Scorpio and the motorcycle. So, in my view, not the least liability can be fastened to the insurance company no. 1. The map has been prepared by the police Sub Inspector, who has no bias in preparing such map. He is a responsible Government Servant, who prepared such map within four days of the accident. 6. I feel that the negligence on the part of the motorcycle borne youths cannot be denied in such accident because they, while coming from Kaladhungi to Haldwani and crossing the bus, were not in their extreme left but in the middle of the road. 7. Looking to these facts, I allow the A.O. No. 111/2009 in toto, while allow the A.O. No. 147/2009 apportioning the liability of at least one-third to the motorcycle borne driver and youth. 8. Thus, the amount of rupees nine lakhs fifteen thousand, which have been awarded by the Tribunal, is reduced to rupees six lakhs ten thousand. This amount of rupees six lakhs ten thousand shall be deposited by the insurance company of the Scorpio, which is the United India Insurance Company Limited, within eight weeks from today and out of this, rupees two lakhs will be returned to the New India Assurance Company Limited, which is the amount already withdrawn by the claimants from the deposits made by the insurance company no. 1. Any other amount lying deposited by the New India Assurance Company before the Tribunal concerned shall be returned back to that company. 9. Let the lower court record be sent back.