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Judgment
Budihal R.B., J.—This is the appeal preferred by the appellant-Insurance Company, challenging the judgment and award passed by the Tribunal, fastening the liability on it and it has also challenged the correctness and legality of the judgment and award on the grounds as mentioned in the appeal memorandum.
The brief facts leading to the case of the claimants before the Tribunal are that on 11.03.2012, at about 10.30 p.m., near water tank filter bed of Chittapur - Gulbarga road, the deceased Chandrashekhar as a pillion rider along with respondent No. 1 who was a rider were returning from Chittapur to their village Bagodi, after purchasing grocery items for business purpose of the deceased on Hero Honda motorcycle bearing registration No. KA-32/EA-9032. The said motorcycle fell down in a big pit, got dug by respondent No. 3 for construction of a bridge, which was allotted by respondent No. 4 and due to that, said Chandrashekhar sustained grievous injuries on his head, left hand and other parts of the body and succumbed to the injuries on the spot. The accident occurred due to the rash and negligent riding of the motorcycle and due to the negligence of respondent Nos. 3 and 4, who left the said big pit unfenced, unguarded and without any signal on the public road. In this regard, the Chittapur police registered a case in Crime No. 23/2012 against the rider of the said motorcycle and respondent No. 3.
Respondent Nos. 1 and 2 therein have filed the objection statements, denying the averments made in the claim petition.
Respondent No. 2 - Insurance Company took the contention that the accident was due to the negligent act of respondent Nos. 3 and 4, as respondent No. 3 had not put any indicator or signal to show that there is big pit and therefore, the liability be fastened on respondent Nos. 3 and 4. The rider of the motorcycle was not holding a valid and effective driving licence and he was not authorized to drive the vehicle on the date of the accident, but respondent No. 1 knowing fully well drove the said motorcycle in public place and thereby, he has committed the breach of policy conditions. Hence, the Insurance Company is not liable to pay the compensation. It was also contended that the liability of the insurance company is subject to the terms and conditions and the details available under Section 149 of the Motor Vehicles Act. The claim is excessive and also baseless and hence, sought to dismiss the claim petition.
On the basis of the said contentions, the Tribunal framed as many as 5 issues and ultimately, allowed the claim petition in part, awarding a total compensation of Rs. 9,04,000/- with interest at 6% p.a. from the date of the petition till realization and the liability was fastened on the insurance company to deposit the entire award amount. Aggrieved by the same, the insurance company is in appeal before this Court.
Heard the arguments of the learned counsel appearing for the appellant - insurance company and also the learned counsel appearing for respondents 1 to 6 - claimants.
Learned counsel appearing for the appellant -insurance company made the submission that the insurance company is not liable to pay the compensation amount, because it is the act policy and no additional premium amount has been collected by the insurance company to cover the risk of the pillion rider. He also made the submission that even fastening the entire liability on the part of the insurance company is not correct, as respondent No. 8 herein was authorized to construct the bridge and dug the pit on the road and during the night hours when the accident took place, there was no any indicator or the signal nor the said pit was fenced to guard the persons who are passing through the said place. Hence, he made the submission that at least the Tribunal ought to have fixed the liability both on the contractor, who dug the pit and also the insurance company. Hence, it is his contention that the rider of the motorcycle himself was negligent and to this effect, even the charge-sheet was also filed against him. Hence, he submitted to allow the appeal and set aside the judgment and award passed by the Tribunal.
Per contra, learned counsel appearing for respondent Nos. 1 to 6 - claimants made the submission that it was not the contention raised by the appellant - insurance company before the Tribunal and for the first time, they are raising the contention before this Court, which is not permissible. He also made the submission that though the case was registered even against the rider of the said motorcycle, it is not under Sections 3 and 181 of the Motor Vehicles Act. Hence, it is his contention that so far as the driving licence is concerned, the insurance company has failed to establish the fact that the rider was not holding the driving licence while riding the said motorcycle. Hence, he submitted that these contentions have been properly considered by the Tribunal and ultimately, the liability was fixed on the insurance company. Hence, he submits that there are no grounds to interfere into the judgment and award passed by the Tribunal.
Perused the grounds urged in the appeal memorandum, the judgment and award passed by the Tribunal and also the oral and documentary evidence adduced by the parties before the Tribunal. The materials goes to show that the incident took place during the night hours and at the place where it has been taken place, the pit was dug and respondent Nos. 8 and 9 herein have not taken any care to put any indicator to show that there is a pit at the said place and the work for the construction was going on at the said place.
Looking to this aspect of the matter, the materials goes to show that there is a contributory negligence both on the part of the rider of the said motorcycle as well as respondent Nos. 8 and 9. This aspect of the matter is not at all considered by the Tribunal while considering the liability on the respondents for the payment of the compensation amount. Though it is contended by the insurance company that the rider of the said motorcycle was not holding the valid and effective driving licence and on that ground the insurance company is not liable to pay the compensation amount, no satisfactory material was placed by the insurance company and the said aspect is also not established before the Tribunal. Under these circumstances and looking to the evidence on record, the finding of the Tribunal putting the entire liability on the part of the insurance company is not correct, as there is a negligence on the part of the rider of the motorcycle and respondent Nos. 8 and 9, as they kept the pit open without putting indicator or fenced it properly, which is also evidenced by the fact that criminal case was also registered against the rider of the very motorcycle and respondent No. 8. This aspect clearly goes to show the negligence on the part of both. Hence, the liability on the part of the insurance company is only to the extent of 50%.
Accordingly, to that extent, the appeal is allowed and the judgment and award passed by the Tribunal fastening the entire liability on the part of the insurance company is hereby set aside making it clear that the liability of the appellant - insurance company is only to the extent of 50%.
Accordingly, the appeal is disposed of.
In view of disposal of the appeal, I.A. 1/2015 filed for stay does not survive for consideration and is accordingly disposed of.