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Judgment
Surinder Singh, J.—The above titled appeals have been filed by the Insurance Company feeling aggrieved and having arisen from the same accident vide separate awards passed by the learned Motor Accident Claims Tribunal-II, Kangra at Dharamshala, decided on 10.6.2010. The challenge is on two grounds that (i) there has been contributory negligence of the motorcyclist as he was carrying two pillion riders beyond the permissible limit; AND (ii) the truck in question was being plied in the State of Himachal Pradesh where accident took place whereas it was having route permit for Punjab State. Heard and gone through the record.
In short, the facts giving rise to the present appeals can be stated thus. On 28.6.2005 around 7.50 p.m. Satish Kumar respondent and his brother Ravinder Kumar were waiting for the lift near Gaggal, in the meantime, Manjeet Singh respondent, their co-villager came on a motorcycle and both of them took the lift. When they reached near Chaudhary Service Station in between Gaggal and Ichhi, a truck bearing registration No. PB-10-P-9816 being driven by respondent Manjeet Singh, driver rashly and negligently, came from the opposite direction on the ''Kacha'' portion of the road towards the motorcyclist and dashed it against the motorcyclist. Even the motorcycle was dragged to a distance causing grievous injuries to the claimants and sped away. The vehicle was apprehended at the place known as ''Chetru''. The injured/claimants were hospitalized in Dharamshala from there they were taken to D.M.C., Ludhiana. They sought the treatment there and ultimately filed the claim petitions.
The owner and the driver, both did not put in appearance, as such they were proceeded ex-parte. Only the Insurance Company resisted and contested the claim petitions. They also moved application u/s 170 of the Motor Vehicles Act, which was allowed.
On enquiry, the learned Tribunal held that the accident is attributed to rash and negligent driving by the truck driver and the truck was being plied in contravention to the provisions of the terms and conditions of the insurance policy on a different route than permitted. Therefore, while allowing the claim petitions of the claimants, the amount of compensation was ordered to be deposited/ paid by the Insurance Company with liberty to recover the same from owner and driver of the offending vehicle.
Shri Deepak Bhasin, learned Counsel for the appellant vehemently argued that on account of the above proved facts on record, the Insurance Company should have been exonerated from the liability, whereas learned Counsel for the claimants supported the impugned award.
As far as first point is concerned, merely the motorcyclist was carrying more than one person, does not raise a presumption of contributory negligence on his part as held by Madhya Pradesh High Court in Devi Singh Vs. Vikram Singh and Others, and in Harbansi Devi and Others Vs. Rakesh Kumar alias Kala and Others, 6, by this Court, unless there is evidence to show that the motorcyclist had one way or the other contributed to the accident. Solely because of breach of a rule it cannot be inferred that such breach had culminated into contributory negligence. [Please also see S.M. Vyas and Another Vs. Sudhaben Sukethu Sutaria and Another, and Agya Kaur and Others Vs. General Manager, Pepsu Road Transport Corporation, Patiala and Others, as relied upon by the above referred Division Bench of this Court.] Since, the appellant did not allege and prove that the motorcyclist had contributed the accident, therefore, by committing the breach of rule as aforesaid, contributory negligence cannot even be inferred. Point No. (i) is accordingly decided.
As far as Point No. (ii) is concerned, the Insurance Company has alleged violation of the policy plying the vehicle without permit, which undisputedly stands proved, but has to deposit the compensation which could be recovered by them without filing the suit. In this behalf, the judgment of Apex Court in National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, can be referred, it held as follows:
The High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed on a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. The High Court was, therefore, not justified in holding the insurer liable.
The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing Court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing Court shall take assistance of the Regional Transport Authority concerned. The executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.
[Emphasis mine]
This judgment was followed in FAO No. 13 of 2007 by this Court, decided on 12.1.2012.
The learned Tribunal had ordered that the amount of compensation be paid/deposited by the Insurance Company with liberty to recover it from the owner and the driver, by moving the applications before it.
In view of the above, I do not find the awards worth interference, as such the appeals filed by the Insurance Company are without merit, hence dismissed.
CMP No. 453 of 2011 in FAO (MVA) No. 398 of 2010.
CMP No. 454 of 2011 in FAO (MVA) No. 399 of 2010.
CMP No. 580 of 2011 in FAO (MVA) No. 411 of 2010.
Let 50% of the awarded amount alongwith the proportionate interests as prayed for, be released to the claimant(s) and be remitted to their individual saving bank account numbers mentioned in para-4 of the applications. All the applications stand disposed of.