Orissa High Court
Oriental Insurance Co. Ltd. And United ... vs Orissa Industrial Infrastructure ... on 15 May, 2002
Equivalent citations: 2002 A I H C 4125, (2002) 94 CUT LT 396 (2002) 3 TAC 596, (2002) 3 TAC 596
Author: B.P. Das
Bench: B.P. Das
JUDGMENT B.P. Das, J.
1. Both these appeals arise out of a common judgment of the Second M.A.C.T. (N.D..), Sambatpur with the consent of the learned counsel for both sides, they are heard together and disposed of by this common judgment.
2. In Misc. Appeal No. 309 of 1999, the Oriental Insurance Co. Ltd. the insurer is the appellant and in M.A. No. 315 of 1999, the United India Insurance Co. Ltd. the insurer is the appellant.
3. The brief facts leading to these appeals as revealed from the judgment of the Second Motor Accidents Claims Tribunal (N.D.), Sambalpur is that on 7/8.7.1995 at about 2 A.M., the son of the claimant, Biswajit Bakshi, was returning from Angul in a Tata-Mobile vehicle bearing No. ORO-2-23 II having temporary registration No. NH 12/0724 . He had been to Angul in a marriage party being called for the purpose of video recording of the marriage ceremony. On his way back home along with others, at Sambalpur the vehicle in which he was travelling ramed in the rear portion of a stationery truck bearing registration No. ORS 8660, parked on the main road, resulting in the death of the deceased Biswajit Bakshi. The deceased was sitting on the front seat of the vehicle and according to the claimant, the truck was parked in the middle of the road in front of Dhaba without switching on the parking light. The Tata Mobile belonged to the Orissa Industrial Infrastructure Development Corporation (IDCO). The respondent No. 3 was the owner of the Truck. The claim application was filed before the Second Motor Accident Claims Tribunal (N.D.), Sambalpur by the mother of the deceased alleging that the drivers of the both the vehicles were negligent, for which the owners and insurers of both the vehicles were impleaded as opposite parties before the Tribunal. It was pleaded that the owners and insurers of both the vehicles were jointly and severally liable to pay compensation.
4. The owners of both the vehicles appeared before the Tribunal and filed their separate written statements disclosing therein that the Tata Mobile as well as the truck were validly insured with the United India Insurance Company Ltd. and Oriental Insurance Company Ltd. respectively.
5. The IDCO, respondent No. 2 also admitted the ownership of the Tata Mobile but stated that the said vehicle was handed over to Railway Administration to supervise the work of construction of railway lines. As the pleading of the oppdsite parties go, the vehicle had been validly insured and they were entitled to be indemnified by the insurers. That apart, the owner of the truck pleaded that the truck was never parked in a reckless manner in the middle of the road, but it was parked near a Dhaba ( a road side hotel) encroaching a little portion of the main road and it was the driver of the Tata Mobile who came in a high speed and dashed against the truck from behind.
6. The Tribunal framed as many as four issues. The claimant examined five witnesses and from the side of the opposite parties one witness was examined. A large number of documents were also filed by either sides.
7. The Tribunal after evaluating the evidence on record, came to the following conclusion.
That the deceased died on account of a motor accident in a public place. The Tata Mobile No. OR-02-2311 being the offending vehicle was responsible for the accident to the extent of 75% and the truck owner was responsible to the extent of 25% and directed the respective Insurance Companies to indemnify to the owners and pay compensation to the claimant.
8. Considering the age of the deceased and his income a compensation of Rs. 3,40,000/- was awarded. The insurer of the Tata Mobile, the United India Insurance Co. Ltd. the appellant in M.A. No. 315 of 1999 was directed to pay Rs.2,55,000/- and insurer of the truck ,the Oriental Insurance Co. Ltd. the appellant in M.A. No. 309 of 1999 was directed to pay Rs. 85,000/- at the ratio of 75% and 25%.
9. This order is challenged in M.A. No. 315 of 1999 by the insurer of Tata Mobile on the ground that the vehicle being covered under the Act Policy (3rd party policy) and the deceased being a gratuitous passenger, the insurer could not have been fastened with the liability of payment of compensation. This being a case of composite negligence, the amount of compensation should be apportioned at the rate of 50:50.
10. The insurer, Oriental Insurance Company Ltd. appellant in M.A. No. 309 of 1999, challenged the award on the ground that the Tribunal should not have fixed its liability at 25% of award, because of the simple reason that the truck which was insured with it had not contributed to any negligence, as the same was parked on the left side of the road. The Tata Mobile being driven in a rash and negligent manner dashed against the truck which was parked. None of the appellants in both the appeals have challenged the quantum of compensation nor disputed the accident in any manner.
11. Mr. A. K. Mohanty, learned counsel for the appellant. United India Insurance Ltd., in M.A. No. 315 of 1999 draws my attention to a decision of the apex Court reported in 2001 (7) Supreme Court 257 (Dr. T. V. Jose v. Chacko P.M. alias Thankachan and Ors.), wherein the apex Court held that the 3rd party policy popularly called "Act Policy" does not-cover liability for gratuitous passengers, who are not carried for hire or reward.
12. Admittedly, the case at hand is after the amendment of the M.V. Act (Old) and covered under the new Act The point raised in this appeal has already been set at rest in the decision of the apex Court, reported in AIR, 2000 SC 235 (New India Assurance Co. v. Sutpal Singh and Ors.) Taking the provision of Section 147 of the new Act. into consideration, the apex Court ultimately held as follows;
"The result is that under the new Act an Insurance Policy covering the 3rd party risk is not required to exclude gratuitous passengers in a vehicle "no matter that the vehicle is of any type or class. Hence, the decisions rendered underthe old Act vis-a-vis gratuitous passengers are of no avail, while considering the liability of the Insurance Company in respect of any accident which occurred or would occur after new Act came into force."
13. This decision of the apex Court squarely covers the case at hand where the accident occurred after new Act came into force. So this argument of the learned counsel for the appellant-Insurance Co. fails.
14. The second plank of argument of Mr. A. K. Mohanty, learned counsel for the appellant in M.A. of No. 315 of 1999 as well-as of Mr. Dutta, learned counsel for the appellant in M.A. No. 309 of 1999 is that the driver of the truck was negligent enough to keep the vehicle in the middle of the road. There is a finding that the entire liability should go to the Insurance Company, i.e., the appellant in M.A. No. 309 of 1999, whereas Mr. Dutta, appearing for the Oriental Insurance Co, states that the truck which was insured with the Oriental Insurance Company was on the left side of the road and due to rash and negligent driving of the driver of the Tata Mobile, the unfortunate incident occurred. According to him, the finding of the Tribunal regarding contribution of the truck to the accident is without any basis for which neither the owner is liable to pay the compensation of 25% nor the insurer is liable to indemnify by the same.
15. Taking into consideration the rival contentions of the parties, in order to arrive at the finding so far as contributing negligence is concerned, I have to look into the evidence led by the parties.
As it appears, the driver of Tata Mobile has been examined as O.P.W. 1 on behalf of the insurer. In his evidence he has stated that he was driving the Tata Mobile in 40 to 50 km. speed per hour .While giving a pass to a bus which was coming from the front side, due to flash of the head-light of the bus he could not see and his vehicle struck the truck which was kept on the middle of the road. Banking upon the aforesaid statement an argument was advanced by Mr. Mohanty that it was the truck which was solely responsible for the unfortunate accident and not the Tata Mobile. In this regard my attention was drawn to Ext. G, the accident report issued by the Motor Vehicle Inspector indicating that the truck was loaded with wooden logs and was pushed to 17' to 18' after collision. The front of the Tata Mobile was found underneath the truck. As per the report, it was the driver of the Tata Mobile who was driving the said vehicle in a rash and negligent manner. Further he opined that the truck standing on the road side had no back light, stop light and indicator to show its portion. For the above reason, the Tata Mobile coming at a very high speed might not be able to locate the vehicle from sufficient distance and ramed into the rear of the truck, That apart, in the report it was indicated that the truck was pushed up to 17 to 18 feet due to the impact of collision. From the evidence on record there is nothing to come to a finding contrary to the finding of the Tribunal that the Tata Mobile was being driven in a high speed. At the same time there is nothing to indicate that the truck was parked in an extreme left of the road. Rather the evidence is that though the truck was kept in the left side it covered a good portion of the road and parking lights were also not switched on.
16. Therefore, the finding of the Tribunal fixing the liability of 75% of the insurer of Tata Mobile and 25% of the insurer of truck is correct and cannot be disputed. The third contention raised by the appellant, United India Insurance Co. Ltd. is that as the vehicle was under the control of the Railways, the insurer is not liable to indemnify the owner. This question was not raised before the Tribunal nor any evidence was led by the insurer in that respect, for which I am not inclined to accept the contention of the insurance at this stage.
17. The Miscellaneous appeals are accordingly dismissed. The finding of the Tribunal is confirmed.
The awarded amount shall be deposited within a period of 8 weeks along with accrued interest.