National Insurance Company Limited vs Mohen Saikia & Ors.

All these seven appeals are preferred under Section 173 of the Motor Vehicles Act, 1988, as amended, [‘the M.V. Act’, for short] against a common Judgment and Award dated 18.07.2012 passed by the learned Member, Motor Accident Claims Tribunal, Golaghat [‘the Tribunal’, for short] in seven nos. of claim applications preferred under Section 166 of the M.V. Act.

The particulars of the motor accident claims cases, the claimants and the reasons for which the claim applications were filed are mentioned hereinbelow in a tabular form. The name of the deceased or the injured, as the case may be, is also mentioned in the Table.

Apart from the claims for deaths or injuries, in three of the applications, that is, MAC Case no. 244/2004 [Mohen Saikia]; MAC Case no. 256/2004 [Kamal Hiloidhari]; and MAC Case no. 227/2004 [Ramananda Das] the claims were made for damages caused to properties.

It is the case of the claimants that the motor accident occurred at about 08-40 a.m. on 09.05.2003 between two vehicles – [i] a truck bearing Registration no. AS-04/4271; and [ii] a two-wheeler bearing Registration no. AS-06/B-6286. In the claim applications, it was mentioned that the place of accident was Rongagora Tiniali on the National Highway [N.H.] 37. It was alleged that when the truck was proceeding from Dergaon side towards Bokakhat town on the National Highway 37 in a rash and negligent manner, the two-wheeler which was ahead of the truck, was also being driven in a rash, negligent and zig-zag manner without leaving any room for the truck to overtake it. It was alleged that when both the truck and the two-wheeler reached Rongagora Tiniali, the two-wheeler abruptly turned to the right side without giving any signal to the speeding truck close behind. The accident had occurred when the truck in order to save the two-wheeler from collision, had to turn to the other side on a sudden. As the truck could not control its speed, it knocked down the passengers there waiting for bus at Rongagora Tiniali. In the claim applications, it was mentioned that as a result of the said accident, three persons – Lakshmi Gupta, Ranu Doley and Kulamon Das – sustained serious injuries on their persons and died instantaneously on the spot. Three other persons – Ramananda Das, Sanjib Hiloidhari and Rantumoni Saikia [minor son of Mohen Saikia] – also sustained injuries on their persons. In the claim applications filed by the claimants – Mahen Saikia and Komol Hilodhari – compensation amounts were sought for the damages caused to three pan shops, belonging to those claimants, located at Rongagora Tiniali, and for the stocks and provisions kept therein.

The materials on record point out that after registration of the claim applications, notices were issued to the opposite parties arraigned in the claim applications. The impleaded opposite parties were :- [i] the rider of the two-wheeler [Migam Chandra Medak], [ii] the insurer of the two-wheeler [M/s New India Assurance Company Limited], [iii] the owner of the truck [Bimal Kumar Borah], [iv] the driver of the truck [Hemo Chauhan], and [v] the insurer of the truck [M/s National Insurance Company Limited]. The insurer of the truck, Ms/ National Insurance Company Limited is the appellant in all the seven appeals herein.

After notices were served on all the opposite parties, all of them, except the opposite party no. 6 in MAC Case no. 163/2003, took part in the proceedings and contested the claim applications by submitting their written statement separately. On the basis of the pleadings, the Tribunal framed two issues for determination and the issues framed were :-

[i] Whether the accident took place due to rash and negligent driving of vehicle bearing Registration no. AS-04/4271 [Truck] and the vehicle bearing Registration no. AS-06/B-6286 [LML Scooter], and whether the above vehicles were under the insurance coverage at the relevant time?

[ii] Whether the claimants are entitled to get compensation in respect of their cases? If so, to what extent and from whom?

During the course of the proceedings, the claimants examined themselves as witnesses in respect of their respective claims and exhibited a number of documents. From the opposite parties, the owner & alleged rider of the two-wheeler [Migam Chandra Medak] stepped into the witness box and gave his testimony and he was also cross-examined by the claimants and the insurers of the two-wheeler and the truck. From the side of the insurer of the truck, two witnesses were examined and they also exhibited a document.

In respect of Issue no. 1, the Tribunal reached a finding that the accident was caused due to rash and negligent driving of both the vehicles, resulting in deaths of Lakshmi Gupta, Ranu Doley and Kulamon Das instantaneously on the spot, and caused injuries to Ramananda Das, Sanjib Hiloidhari and Ranju Saikia. The Tribunal had thereafter, proceeded to determine the question whether the two offending vehicles were under insurance coverage at the relevant time of the accident. On the said aspect, the Tribunal reached a finding that the two-wheeler was not under any insurance coverage at the time of the accident and therefore, the owner of the two-wheeler would have to bear the liability. The Tribunal had exonerated M/s New India Assurance Company Limited, who was impleaded as the insurer of the two-wheeler. In so far as the insurer of the truck is concerned, the Tribunal after examination of the evidence on record, held that as the insurance policy for the truck was issued by a cover note wherein the date of commencement of coverage was shown from 06-00 p.m. onwards on 09.05.2003. The Tribunal held that as the accident had occurred at 08-40 a.m. on 09.05.2003, the insurer, M/s National Insurance Company Limited, that is, the appellant cannot escape the liability. Holding so, the Tribunal has held that the claimants would be entitled to get compensation from the owner of the two-wheeler and the insurer of the truck.

The Tribunal had thereafter, proceeded to determine the quantum of compensation in each of the claim applications separately on the basis of the evidence led by the parties. After analysis of the evidence on record, the Tribunal awarded the following compensation amounts to the claimants :-

Finally, while disposing of the seven claim applications on contest, the Tribunal decided both the issues against the insurer of the truck and the owner of the two-wheeler respectively and apportioned the liability at the ratio, 80 : 20. The insurer of the truck was directed to pay 80% of the awarded amounts to the claimants in their respective claim applications, while the owner of the two-wheeler was directed to pay the remaining 20% of the award amounts to the claimants in all the seven claim applications, within a period of sixty days from the date of the Judgment and Award dated 18.07.2012 along with interest @ 6% from the date of filing of the claim applications till realization of the entire amount.

Aggrieved by and dissatisfied with the direction to pay 80% of the awarded amounts in all the seven claim applications, the insurer of the truck, which was found to be one of the two offending vehicles involved in the accident, as the appellant is before this Court by the present seven appeals.

I have heard Mr. R.K. Bhatra, learned counsel for the appellant, that is, the insurer of the truck; Mr. M. Dutta, learned counsel for the respondent no. 4, that is, the owner of the two-wheeler; and Ms. P. Borthakur, learned counsel for the respondent M/s New India Assurance Company Limited, which was impleaded as the alleged insurer of the two-wheeler in the claim applications before the Tribunal.

The claimant in each of the seven claim applications is the respondent no. 1 in the present seven appeals. The owner of the truck was impleaded originally as the respondent no. 2 in the seven appeals. As the owner of the truck expired during pendency of these appeals, the legal representatives of the owner of the truck have been substituted as respondent no. 2[1] and the respondent no. 2[2] respectively. The driver of the truck is impleaded as respondent no. 3 in the present seven appeals. Despite service of notices upon the afore-mentioned respondent no. 1, the respondent no. 2, the respondent no. 2[1], the respondent no. 2[2] and the respondent no. 3, they opted not to participate in the present proceedings by entering appearance.

The main plank of submission of Mr. Bhatra, learned counsel appearing for the appellant is that the Tribunal had misconstrued the provisions of Section 145[b] r/w Section 147 of the M.V. Act and Section 64VB of the Insurance Act, 1938. It is his contention that when the cover note specifically mentions the date and time of commencement of insurance coverage, there cannot be any other interpretation of the insurance contract. In the case in hand, it has clearly emerged from the evidence on record that the accident took place at about 08-40 a.m. on 09.05.2003 and the cover note was issued by the appellant - insurer stating specifically that insurance coverage would commence from 06-00 p.m. onwards on 09.05.2003. The Tribunal had erred in appreciating the aspect regarding commission of fraud by the owner of the truck in getting insurance coverage by suppression of fact of accident and non-cancellation of the cover note by the appellant insurer at a subsequent point of time after getting the knowledge about the accident. He has further submitted that the decision referred to by the Tribunal in foisting liability on the appellant - insurer is not applicable in view of the clear evidence on record that the insurance coverage was to commence subsequent to the time of the accident. He has contended that the appellant - insurer is to be extricated from the liability and in such a situation, it is the owner of the truck who is to be held liable for payment of the compensation amounts awarded by the Tribunal. In support of his submissions, Mr. Bhatra has referred to a number of decisions of the Hon’ble Supreme Court of India, which would be adverted to in the later part of this order.

Ms. Borthakur, learned counsel appearing for the respondent no. 5 has submitted that the Tribunal has already held that M/s New India Assurance Company Limited was not the insurer of the two-wheeler and the owner of the two-wheeler, that is, the respondent no. 4 herein has not preferred any appeal contesting such finding. In view of such position, no direction can be made against it as an insurer of the two-wheeler. The Tribunal has already relieved M/s New India Assurance Company Limited from any liability in the accident as at the relevant time, two-wheeler involved in the accident had no insurance coverage.

Mr. Dutta, learned counsel appearing for the respondent no. 4, that is, the owner of the two-wheeler has submitted that though no appeal has been preferred by the respondent no. 4 against the common Judgment and Award dated 18.07.2012 passed in the seven claim applications, yet, the case of the respondent no. 4 as the owner of the two-wheeler necessitates consideration under Order 41, Rule 33, Code of Civil Procedure, 1908. According to him, the finding reached by the Tribunal that there was rash and negligent driving on the part of the respondent no. 4 as the rider –cum- owner of the two-wheeler was perverse. The Tribunal did not take into consideration the stand taken by the respondent no. 4 in his written statement and his testimony to the effect that at the relevant time, he was not riding the two-wheeler and therefore, the question of driving the two-wheeler in rash and negligent manner on his part could not arise. He has placed reliance upon two decisions of the Hon’ble Supreme Court, to be mentioned at a later part of this order, to buttress his submissions.

I have duly considered the submissions of the learned counsel for the parties and have also gone through the materials / evidence on record, available in the case records of the seven MAC cases, in original.

The issue which has arisen for consideration in these appeals preferred by the appellant is whether the appellant can be saddled with the liability to pay the compensation amounts to the claimants to the extent determined by the Tribunal in its common Judgment and Award dated 18.07.2012 on the basis of the evidence on record.

The definition of ‘Certificate of Insurance’ is provided in clause [b] of Section 145 of the M.V. Act. As per sub-section 145 [b], ‘certificate of insurance’ means a certificate issued by an authorised insurer in pursuance of sub-section [3] of Section 147 and includes a cover note complying with such requirements as may be prescribed, and where more than one certificate has been issued in connection with a policy, or where a copy of a certificate has been issued, all those certificates or that copy, as the case may be. Thus, a certificate of insurance includes a cover note. Section 147 [3] of the M.V. Act has provided that an insurance policy shall be of no effect for the purpose of Chapter XI [Insurance of Motor Vehicles against Third Party Risks] of the M.V. Act unless and until there is issued by the insurer in favour of the person by whom the policy is effected, a certificate of insurance in the prescribed form and containing the prescribed particulars subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. In simpler term, an insurance policy is ineffective unless the insurer issues a formal certificate of insurance to the policyholder. In terms of Section 64VB of the Insurance Act, 1938, the risk on the part of the insurer would commence on receipt of payment of premium from the insured.

As noted above, the Tribunal proceeded to affix the liability on the appellant as the insurer of the offending Truck on the basis of a decision of a two-Judge Bench of the Hon’ble Supreme Court of India in Oriental Insurance Company Limited vs. Dharam Chand and others, [2010] 15 SCC 141. It would be apposite to refer to the decisions cited at the Bar on the point of commencement of insurance coverage including the decision Dharam Chand [supra].

In the case of Dharam Chand [supra], the premium cheque for the insurance policy was received by the appellant insurance company on 07.05.1998 at 04-00 p.m. and a cover note was issued at the same time. In the cover note, it was stated that the insurance would commence from 08.05.1998 and expire on 07.05.1999. The motor accident in regard to which the claim case was filed took place at 08-30 p.m. on 07.05.1998. The insurance company, at first, disowned its liability on the plea that the accident took place before commencement of the insurance coverage as indicated in the cover note. But, both the Tribunal and the High Court turned down the plea and held that the insurance company was liable to pay the compensation amount. When the appeal was taken up for consideration by the Hon’ble Supreme Court, the counsel for the insurance company submitted that since the cheque for the premium amount was received by the insurance company at 04-00 p.m. on 07.05.1998, the insurance coverage must be deemed to have commenced from that time and since the accident took place four hours later, the owner would be deemed to have been covered by the insurance policy. Thus, what emerges from the decision in Dharam Chand [supra] is that as the cover note was issued at 04-00 p.m. on 07.05.1998 on receipt of the premium by cheque, the insurance coverage must be deemed to have commenced from that time. Therefore, for the motor accident occurred after four hours therefrom at 08-40 p.m. on the same date, there was insurance coverage to indemnify the owner of the vehicle.

Much earlier to the decision in Dharam Chand [supra], there was a three-Judge Bench decision in Oriental Insurance Company Limited vs. Sunita Rathi, [1998] 1 SCC 365. In the said case, the motor accident occurred on 10.12.1991 at 02-30 p.m. It was only thereafter at 02-55 p.m. on the same day, the insurance policy with cover note was obtained by the owner of the motor vehicle involved in accident. There was express mention in the cover note that the effective date and time of commencement of insurance for the purpose of the M.V. Act was on 10.12.1991 at 02-55 p.m. In such fact situation, the Hon’ble Supreme Court held that the insurer cannot be held liable on the basis of the above policy and the cover note and therefore, the liability amount had to be of the owner of the vehicle. It has been held that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance.

It is also relevant to refer to the following observations made by the three-Judge Bench decision of the Hon’ble Supreme Court of India in New India Assurance Company Limited vs. Sita Bai, [1999] 7 SCC 575 :-

There was another three-Judge Bench decision in New India Assurance Company Limited vs. Rakesh Talwar, [2000] 9 SCC 229. In Rakesh Talwar case, the motor accident took place at 01-00 p.m. on 17.10.1996 and the appellant - insurer was ordered to pay the amount award to the claimants. The appellant - insurer led evidence to establish that the insurance policy was issued at 02-30 p.m. on 17.10.1996. Such evidence led by the insurance in the proceedings before the Tribunal remained uncontroverted so far as the respondent – insured was concerned. The Hon’ble Supreme Court following an earlier three-Judge Bench decision in Oriental Insurance Company Limited vs. Sunita Rathi, [1998] 1 SCC 365, held that the appellant - insurer was not liable as to pay to the claimants as the motor accident took place at 01-00 p.m. on 17.10.1996.

The dispute in the case of Oriental Insurance Company Limited vs. Porselvi and another, [2009] 15 SCC 116, arose with regard to the date of commencement of the policy, that is, the date from which the policy was in operation. In the said case, the accident took place on 28.05.1996 and the policy covered the period from 29.05.1996 to 28.05.1997. In the cover note, it was mentioned that the policy was valid from 29.05.1996 to 28.05.1997 though it was issued on 28.05.1996. In view of such evidence on record, the appeal preferred by the appellant - insurer was allowed extricating the appellant -insurer from the liability to pay the amount of compensation awarded by the Tribunal.

In another three-Judge Bench decision in New India Assurance Company, Bangalore vs. Kareemunnisa, [2009] 16 SCC 241, the Hon’ble Supreme Court has held as under :-

From the above authorities, it is evident that when there is express mention in the cover note or the insurance policy about the time and date of commencement of insurance coverage for the purpose of the M.V. Act, then the insurer is liable only from the time and date as mentioned expressly in the cover note or the insurance policy and it is not liable for any accident which occurred at any time anterior to the time and date of commencement expressly mentioned in the cover note.

Reverting back to the facts of the case in hand, it is found that on behalf of the appellants, one Branch Manager of Golaghat Branch viz. Nirmal Das [D.W.2] and the Development Officer viz. Sri Apurba Kumar Phukan as [D.W.3] had testified and exhibited a document as Exhibit-A and a part of it as Exhibit – A [1]. Exhibit - A is a certified copy of a Cover Note no. 080220118. In his testimony, the witness, Apurba Kumar Phukan [D.W.3] deposed to the effect that he issued the Cover Note no. 808220 against the Truck bearing Registration no. AS-04/4271 and in the Cover Note, the time and date of commencement of insurance coverage were mentioned as 09.05.2003, 06-00 p.m. onwards. He further deposed that the alleged accident occurred at about 08-40 a.m. on 09.05.2003 and the cover note was subsequently obtained after occurrence of the accident. The other witness from the insurer, Nirmal Das [D.W.2] deposed in similar lines. He also exhibited the certified copy of Cover Note no. 080220 as Exhibit - A and the time and date of issuance of the cover note therein was exhibited as Exhibit – A [1].

On perusal of Exhibit - A and Exhibit – A [1], it is clearly evident that in the cover note, the owner of the Truck bearing Registration no. AS-04/4271 was mentioned as the insured and a payment of Rs. 7,649/- was received as insurance premium. As per Exhibit – A [1], the effective date and time of commencement of insurance for the purpose of the M.V. Act was from 09.05.2003, 06-00 p.m. onwards to midnight of 08.05.2004. The said part of the testimony of these two witnesses, D.W.2 and D.W.3 withstood the test of cross-examination. It has, thus, clearly emerged from the evidence on record that the date and time of commencement of insurance coverage for the offending Truck was only from 09.05.2003, 06-00 p.m. onwards. It has also unerringly emerged that the accident involving the Truck occurred at 08-40 a.m. on 09.05.2003, that is, prior to the time and date of commencement of insurance coverage as per Exhibit - A and Exhibit – A [1]. Therefore, in view of the provisions of Section 145[b] r/w Section 147[3] of the M.V. Act and Section 64VB of the Insurance Act, the appellant, by no stretch, can be held liable to indemnify the owner of the Truck for making payment of the compensation amounts awarded by the Tribunal by the common Judgment and Award dated 18.07.2012. Therefore, the direction of the Tribunal made in the common Judgment and Award dated 18.07.2012 holding the appellant as the insurer of the offending Truck liable to make payment to the extent of 80% of the compensation amounts awarded by the Tribunal stands set aside and quashed.

In support of the submissions advanced on behalf of the respondent no. 4 mentioned in paragraph 16 above, two decisions – [i] Pannalal vs. State of Bombay and others, AIR 1963 SC 1516; and [ii] Dhangir and others vs. Madan Mohan and others, 1987 [Supp] SCC 528, have been referred to. In order to appreciate the submissions, it would be apposite to refer to Order XLI Rule 33, CPC at first. Order XLI Rule 33, CPC has provided as under :-

If any of the parties is aggrieved by a Judgment and Award passed by the Motor Accident Claims Tribunal, such aggrieved party, notwithstanding any appeal preferred by any of the other parties, can himself prefer an appeal against such Judgment and Award under Section 173 of the M.V. Act at the first point of time. Even if such an appeal is not preferred at the first point of time, such an aggrieved party can avail another opportunity if any of the parties prefers an appeal against the Judgment and Award and upon admission of the appeal, wherein such a party is made a respondent, the appellate court has issued notice to him. In such situation, the aggrieved party can avail another opportunity under Order XLI Rule 22, CPC by filing a cross objection.

As per Rule 22 [1] of Order XLI, CPC, any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the appellant court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow.

In the five-Judge Bench decision in Pannalal [supra], it has been elucidated that even a bare reading of Order XLI Rule 33, CPC is sufficient to convince anyone that the wide wording was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondent as ‘the case may require’.

It has been observed that in Dhangir [supra] to the effect that if the cross-objection filed under Rule 22 of Order XLI, CPC was not maintainable against the co-respondent, the court could consider it under Rule 33 of Order XLI. Rule 22 and Rule 33 are not mutually exclusive. They are closely related to each other. If the objection cannot be urged under Rule 22 against co-respondent, Rule 33 could take over and come to rescue the objector. The appellate court could exercise the power under Rule 33 even if the appeal is against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case.

The respondent no. 4 herein was impleaded as opposite party no. 4 in the claim applications as the rider –cum- owner of the two-wheeler involved in the motor accident, which occurred at 08-40 a.m. on 09.05.2003. Admittedly, in the said motor accident another vehicle, that is, the Truck bearing Registration no. AS-04/4721 was involved. In such backdrop, only two aspects appear to be open for the respondent no. 4 herein to raise in the context of Order XLI Rule 33, CPC, firstly, that he is not liable to make payment of any compensation amounts to the claimants in the claim applications because the two-wheeler was, at the relevant point of time, under insurance coverage and therefore, the insurer would be liable to indemnify him; and secondly, that there were no act of rash and negligent driving on his part and therefore, the entire liability shall be shifted to the other vehicle, that is, Truck bearing Registration no. AS-04/4721.

In so far as the first aspect is concerned, this Court does not find it acceptable in view of the fact that the respondent no. 4 entering into the witness box, had himself testified that on the date of the accident, the two-wheeler had no insurance coverage.

On the second aspect, it is found that in the written statement filed by him and in the affidavit filed before the Tribunal on evidence, he stated that he was the owner of the two-wheeler bearing registration no. AS-06/B-6286. He stated that there was no occasion on his part to ride the two wheeler on the date of the accident as he used to attend his office by boarding a bus at Rongagora Tiniali. He stated that on that day, he was not driving the motorcycle in a zig-zag, rash and negligent manner. From the claimants’ sides, two of the eye-witnesses testifying about the accident were Mohen Saikia [the claimant in MAC Case no. 244/2004] and Sanjib Hiloidhari [the claimant in MAC Case no. 257/2004].

In his testimony, Mohen Saikia deposed to the effect that in the said accident, his minor son Rantumoni Saikia sustained injuries and his ghumti shop was damaged. Ghumti shop was situated at Rongagora Tiniali. On the incident, he deposed that at the time of the accident, a motorcycle bearing Registration no. AS-06/B-6268 and a Truck which was closely following it, were coming from Dergaon side towards Kamargaon side in rash and negligent manner. When the two vehicles reached near Rongagora Tiniali, the motorcycle took a sudden right turn without showing any prior signal to the Truck closely behind and in the process of saving the errant motorcyclist, the truck had to steer towards left and dashed against some roadside waiting people killing three persons on the spot and injuries to some others apart from damaging his ghumti shop including stock and provisions therein. He further testified that his minor son Rantumoni Saikia who was waiting in front his ghumti shop, sustained a number of injuries on his person.

In his testimony, Sanjib Hiloidhari deposed to the effect that at the time of accident, he was waiting in front of his stationery shop situated at Rongagora Tiniali. At that time, a motorcycle bearing registration no. AS-06/B-6286 and a Truck bearing Registration no. AS-04/4721 closely behind the motorcycle, were coming from Dergaon side towards Kamargaon side in rash and negligent manner. When the two vehicles reached near Rongagora Tiniali, the motorcycle took a sudden right turn without showing any prior signal to the following Truck and in the process of saving errant motorcyclist, the truck had to steer towards left and dashed against some roadside waiting people including him and the truck also damaged his stationery ghumti shop. As a result of the accident, three persons died instantaneously on the spot and he also sustained a nos. of injuries on his person.

The testimony of these two witnesses stood the test of cross-examination. These two witnesses were not cross-examined on the point regarding non-involvement of the two-wheeler by any of the other parties including the respondent no. 4 herein. There is clear evidence regarding involvement of the two-wheeler in the accident.

The Tribunal on analysis of the entire evidence brought on record including the testimony of the three persons mentioned above and other witnesses, reached at a clear finding that the plea taken by the respondent no. 4 that on the relevant date he was attending his office at Jorhat by boarding a bus cannot be accepted. The Tribunal from the evidence of the claimants supported by the exhibits including charge-sheet and seizure report seizing the two-wheeler bearing Registration no. AS-06/B-6286, found it established that the accident occurred due to rash and negligent driving of both the vehicles, that is, the two-wheeler bearing Registration no. AS-06/B-6286 and the Truck bearing Registration no. AS-04/4721 causing the death of Lakshmi Gupta, Ranu Doley and Kulamon Das on the spot and injuries to three others. After finding involvement of the said two vehicles which were found to be due to rash and negligent driving on their parts, the Tribunal proceeded to apportion the liability at the ratio of 80 : 20 on the principle that heavier the vehicle heavier the responsibility. With the involvement of the rash and negligent driving on the part of its rider, the respondent no. 4 being the owner of the two-wheeler, is liable, even if it is assumed, for a moment, for the sake of argument, that he was not the rider.

In view of the evidence available on record, this Court is of the unhesitant view that the assail made regarding perverse nature of finding recorded by the Tribunal on the points of [i] involvement of the two-wheeler; and [ii] on the apportionment of liability fails. The provisions contained in Order XLI Rule 33, CPC in the above obtaining fact situation, in the considered view of this Court, cannot be brought in for any interference to the common Judgment and Award dated 18.07.2012 passed by the Tribunal.

Summing up, all these seven appeals stand allowed, by rejecting the contentions made on behalf of the respondent no. 4. While parting with, it is observed that if, in the meantime, the appellant had paid any amount to the claimants in satisfaction of the direction made in the common Judgment and Award dated 18.07.2012, then such amount is not to be recovered from the claimants, and the appellant is permitted to take all legal steps to recover the amounts from the owner of the Truck or his representatives. On the other hand, if no amount has been paid by the appellant in view of the interim order of stay passed in these appeals on 02.05.2013 in M.C. no. 1062/2013 arising out of MAC Appeal no. 113/2013, then the appellant is not liable to pay any amount in satisfaction of the common Judgment and Award dated 18.07.2012. The statutory amounts deposited by the appellant at the time of filing the appeals are to be returned to the appellant by following due formalities.