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Judgment
Rajesh Tandon, J.—Heard Sri P.C. Maulekhi, counsel for the appellant. This is an appeal filed by the Insurer.
By the present A.O. filed u/s 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 10.8.2007 passed by the Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar in Motor Accident Claim Case No. 59 of 2005 Smt. Govindi Devi and Ors. v. Harish Chandra Pandey and Anr. whereby a sum of Rs. 50,000/- has been awarded towards compensation for no fault liability u/s 140 of the Motor Vehicles Act.
Briefly stated, a claim petition was filed by the claimants-respondents No. 1 to 3 being M.A.C.P. No. 59 of 2005 Smt. Govindi Devi and Ors. v. Sri Harish Chandra Pandey and Anr. claiming a sum of Rs. 4,70,000/-towards compensation.
According to the claim petition, on 21.5.2004 at about 1.30 p.m., when Bhuwan Chandra (hereinafter referred to as the deceased) was going to Daulia D Class from Halduchaur by Motor Cycle No. U.A. 06C-0244 in a moderate speed, as soon as it reached near Halduchaur Junior High School, all of a sudden a dog appeared in front of the motor cycle, and in saving that dog, the motor cycle collided with the boundary of the School. In this accident, both the persons received grievous injuries. In the way to hospital, the deceased died. The post mortem was conducted on 21.5.2004 at Soban Singh Base Hospital, Haldwani. First Information of this accident was lodged at P.S. Lalkuan. At the time of accident, the deceased was 26 years of age and was earning a sum of Rs. 3,000/- per month.
Owner of the motor cycle in question has filed a written statement stating therein that the same is registered in his name and the same was registered with New India Assurance Company at the time of accident. It has also been stated that at the time of accident, the rider of the motor cycle was holding valid driving licence and the Insurance Company is liable to pay compensation, if any.
Insurer has also filed a written statement Paper No. 17 Kha stating therein that the information of the alleged incident was not given to it and the amount claimed towards compensation is excessive. It has also been stated that at the time of accident, the rider of the motor cycle in question was not holding valid driving licence.
On the pleadings of the parties, the claims Tribunal has framed following issues:
1& D;k nq?kZVuk fnukad 21&5&2004 dks le; djhc 1-30 cts fnu esa e`rd Hkqou pUnz }kjk eksVjlkbZfdy la[;k ;w0,0&06lh&0244 dks vR;ar /kheh xfr ,oa lko/kkuhiwoZd pykus ds ckotwn lkeus ls vkus okys ,d dqRrs dks cpkus ds fy, gYnwpkSM+ nhuk ds ikl twfu;j gkbZLdwy dh ckmUM�h okWy ls eksVjlkbZfdy ds Vdjk tkus ds dkj.k ?kfVr gq;h] ftles eksVj lkbZfdy pkyd e`rd Hkqou pUnz ds izk.k?kkrd pksVs vk;h vkSj mldh bu pksVksa ls e`R;q gq;h] tcfd eksVjlkbZfdy ij ihNs cSBs gjh''k pUnz dks xEHkhj pksVs vk;h \\ ;fn gkaW rks izHkko \\
2& D;k ;kphx.k dksbZ izfrdj dh /kujkf''k izkIr djus ds vf/kdkjh gS \\ ;fn gka rks fdruh o fdl i{kdkj ls \\
On behalf of the claimants, Smt. Govindi Devi and Khimanand Pandey have been examined as P.W. 1 and P.W. 2 respectively. Towards documentary evidence, per list 7Ga/1 First Information Report, Post Mortem Report, Academic Certificates of the deceased, Registration Certificate of the Motor Cycle, copy of the Driving Licence.
On behalf of the opposite parties, no oral evidence has been produced. Towards documentary evidence, per List 10Ga/1 copy of the Insurance Cover Note and copy of the Driving Licence have been filed.
While deciding the Issue No. 1 as to whether on 21.5.2004 at about 1.30 p.m. despite cautious and moderate driving of the Motor Cycle No. U.A. 06C-0244 by deceased Bhuwan Cahndra due to sudden appearance of a dog in front of the vehicle in question, the motor cycle in question collided with the boundary wall of Junior High School near Haldu Chaur, in which deceased received fatal injuries and succumbed to injuries and another person Harish Chandra (pillion rider) received grievous injuries, claims tribunal has relied upon the statement of Smt. Govindi Devi P.W. 1 and Sri Khimanand Pandey - ocular witness P.W. 2. Smt. Govindi Devi - P.W. 1 has narrated entire story. Khimanand has stated that due to sudden appearance of the dog, accident took place in saving the dog. Further reliance has been placed on the First Information Report. After relying upon the aforesaid statements and the documents, claims tribunal has recorded a finding that on 21.5.2004 at abouit 1.30 p.m. in the area of P.S. Lalkuan, District Nainital, due to sudden appearance of a dog, motor cycle No. U.A. 06C-0244 collided with the boundary wall, in which Bhuwan Chandra succumbed to injuries.
I do not find any infirmity or illegality in the aforesaid findings and the same deserves to be confirmed.
While deciding the Issue No. 2 with regard to quantum of compensation, claims tribunal has awarded a sum of Rs. 50,000/- u/s 140 of the Motor Vehicles Act for no fault liability. Further since, the motor cycle in question was insured at the time of the accident, therefore, the liability has been held to be of Insurance Company to pay the compensation.
A perusal of the award shows that while deciding the Issues No. 1 and 2 a finding has been recorded in favour of the appellant that it was not a rash and negligent and as such only on account of no fault liability, a sum of Rs. 50,000/- has been awarded.
Counsel for the appellant has referred United India Insurance Co. Ltd., Shimla Vs. Tilak Singh and Others, . The relevant observations are quoted below:
In Rikhi Ram and Another Vs. Smt. Sukhrania and Others, , a Bench of three learned judges of this court had occasion to consider Section 103-A of the 1939 Act. This court re-affirmed the decision in G. Govindan Vs. New India Assurance Co. Ltd. and Others, and added that the liability of an insurer does not cease even if the owner or purchaser fails to give the intimation of transfer to the insurance company, as the purpose of the legislation was to protect the rights and interest of the third party.
Thus, in our view, the situation in law which arises from the failure of the transfer of ownersip of the insured vehicle is no different, whether u/s 103-A of the 1939 Act or u/s 157 of the 1988 Act insofar as the liability towards a third party is concerned Thus, whether the old Act applied to the facts before us, or the new Act applies, as far as the deceased third party was concerned, the result would not be different. Hence, the contention of the appellant on the second issue must fail, either way, making a decision on the first contention unnecessary, for deciding the second issue. However, it may be necessary to decide which Act applies for deciding the third contention. In our view, it is not the transfer of the vehicle but the accident for the application before the Tribunal. Undoubtedly, the accident took place after the 1988 Act had come into force. Hence it was the 1988 Act which would govern the situation.
In our view, although the observations made in New India Assurance Co. Ltd. Vs. Asha Rani and Others, , were in connection withi carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant insurance company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy and hence it did not cover the risk of death of or bodily injury to gratuitous passenger.
Aforesaid judgment relates to the compensation and in the present case, since only the award has been made only on the basis of no fault liability u/s 140, therefore, the case is fully distinguishable.
I see no ground to interfere with the award dated 10.8.2007 passed in the Motor Accident Claim Case No. 59 of 2005 at this stage.
Consequently, A.O. is dismissed. No order as to costs.