United India Insurance Company Limited vs Kailasho and Others

Rekha Mittal, J.

The present appeal has been directed against the award dated 27.1.2014 passed by the Motor Accident Claims Tribunal, Hisar (in short "the Tribunal") whereby compensation has been awarded in favour of Kailasho and others in regard to death of Naresh in a motor vehicular accident. Counsel for the appellant has fairly conceded that dispute as to whether offending vehicle was insured with the appellant insurance company stands resolved and the vehicle was found to be insured with the appellant. However, it is submitted that as the deceased was driving the motor cycle bearing No. HR-21D-7398 on which two persons namely Sonu and Suresh Kumar were travelling as pillion riders, the deceased is guilty of driving the motor cycle in violation of the provisions of Section 128 of the Motor Vehicles Act, 1988 (in short "the Act"). Another submission made by counsel is that as three persons were travelling on the motor cycle meant for two persons, it can be safely inferred that the deceased must have lost balance of the motor cycle and, therefore, guilty of contributory negligence.

It is further argued that during investigation in the first information report, the owner/insured of the vehicle made a statement under Section 161 of the Code of Criminal Procedure (in short "Cr.P.C.") and admitted that the vehicle was being used for hire/reward, therefore, the insured is guilty of violating the terms and conditions of insurance policy which entitles the insurance company to recover the amount of compensation after discharging liability qua the claimants. In addition, it is submitted that the learned Tribunal has committed arithmetic error in computing compensation payable to the claimants.

I have heard counsel for the appellant and perused the records.

The plea of the appellant that the deceased is to be held guilty of contributory negligence merely because he was driving the motor cycle with two persons on its pillion, is misconceived and merits outright rejection. Firstly, no such plea was raised in the reply filed by the insurance company. No issue was framed by the Tribunal if the deceased had contributed in any manner for the accident. There is nothing on record to suggest as to how act of the deceased driving the motor cycle with two persons on its pillion played any role in happening of the accident. In this view of the matter, the appellant cannot take any advantage to its contention from the mere fact that the deceased was travelling on the motor cycle with two persons on its pillion or in contravention of the provisions of Section 128 of the Act.

Counsel for the appellant has raised another plea of the insured being guilty of violating the terms and conditions of the insurance policy as the offending vehicle was used for hire/reward. Again, no such plea has been raised in the reply filed by the insurance company nor any issue in this regard was framed by the learned Tribunal. There cannot be any doubt about the settled position of law that in case the insurance company intends to avoid its liability on any of the grounds of defence available under Section 149 of the Act, it is obligated to plead and prove the same during proceedings before the Tribunal. In this context, reference can be made to a Division Bench judgment of this court National Insurance Company Limited Vs. Kamlesh Kaur and Others, . This apart, any statement recorded under Section 161 of the Cr.P.C. cannot be used for any purpose except to corroborate or contradict the maker thereof when examined during course of trial. In the case at hand, as the insurance company never raised such a plea, there was no occasion for the insurance company to confront the insured with any such statement purported to be made by him during course of investigation. In this view of the matter, the contention raised by counsel for the appellant is devoid of merit and accordingly rejected.

So far as the plea with regard to arithmetic error in calculating compensation, the appellant is always at liberty to file an appropriate application before the learned Tribunal for seeking necessary correction/clarification. For the reasons aforesaid, finding no merit, the appeal is dismissed in limine.