The central legal point established in the judgment is the liability of the Insurance Company in cases of composite negligence and the inapplicability of the deceased carrying an unauthorized passenger to the claim under the Motor Vehicles Act.

ORDER :

1. Leave granted.

2. A challenge has been laid to the judgment dated 09.06.2017 passed by the High Court of Judicature at Bombay whereby the order dated 28.02.2011 passed by the Motor Accident Claims Tribunal, Mumbai (for short ‘the Tribunal’) was upheld, and consequently the respondent-Insurance Company has been exempted from payment of compensation amount of Rs.11,75,870/-, assessed by the Tribunal, with a further direction that the aforesaid amount shall be paid by respondent No. 1-owner of the milk tanker.

3. Prakash Pawar was employed as a driver with Brihanmumbai Electricity Supply and Transport Undertaking (Hereafter ‘BEST’). On 05.06.1997, he was driving milk tanker No. MH-09-Q-5546 on the Mumbai Pune Road. When the milk tanker was in the vicinity of village Vakasi in Lonavala Taluka, it appears that there was a collision between milk tanker and another vehicle, a gas tanker No. MCT-1693. The gas tanker was in front of the milk tanker and both the vehicles were proceeding in the same direction. Though there is some dispute with regard to the manner in which the accident took place, broadly it is alleged that Prakash Pawar-the driver of milk tanker attempted to overtake the gas tanker and while doing so, he hit the right side of the gas tanker and lost balance. Consequently, a woman died on the spot and Prakash Pawar also suffered severe injuries because of which he passed away. Appellant No. 1 is the wife of the deceased whereas appellant Nos.2 and 3 are his daughter and son, respectively and appellant No. 4 is the mother of the deceased.

4. The appellants filed a Claim Petition before the Tribunal. Four issues arose for consideration before the Tribunal, namely (i) Whether Prakash Pawar died on account of rash and negligent driving of the two vehicles; (ii) What was the monthly income of the deceased; (iii) Whether the insurer of the milk tanker bearing No. MH-09-Q-5546 has proved that the vehicular accident had taken place due to composite negligence of both the drivers; (iv) Whether the appellants were entitled to compensation, if so, to what amount and from whom?

5. The Tribunal answered Issue Nos. 1, 2 and 4 in favour of the appellants thus awarding a compensation of Rs. 11,75,870/-. As regard to Issue No. 3, the Tribunal held that the insurer could not prove the composite negligence of the drivers of the two vehicles.

6. In our considered opinion, Issue No. 3 was also, in a way, answered in favour of the appellants. We say so for the reason that both the vehicles involved in the accident were admittedly insured with the New India Assurance Company Ltd.-Respondent No. 2 herein. Whether it was a case of composite negligence or the accident had occurred on account of rash and negligent driving of one of the drivers becomes inconsequential as the vehicles involved in the accident being insured by the same Insurance Company, the liability eventually falls upon the said Insurance Company.

7. The Tribunal and the High Court have apparently exonerated the Insurance Company from its liability on the premise that the deceased driver was also carrying a passenger in the milk tanker unauthorisedly in violation of the Insurance Policy.

8. We are not impressed by the said finding. Firstly, the claim under the Motor Vehicles Act does not pertain to the injuries or fatal accident of an unauthorised passenger. The deceased was admittedly employed as a driver of the milk tanker and he possessed a valid driving licence. There is no finding that it was the deceased who alone was responsible for causing the accident. Similarly, the question whether an unauthorised passenger was travelling or not also appears to be debatable. Be that as it may, such question has no bearing on the claim made by the appellants, who lost their bread winner in a motor accident, due to collision of two vehicles, one of which being driven by the deceased. As noticed earlier, the composite negligence or similar negligence hardly has any bearing on the merit