The insurer is liable for compensation despite claims of negligence by the deceased, as the negligence of the bus driver was established.

Judgment :

(Radhakishan Agrawal, J.)

Heard.

1. This insurer’s appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short, the Act, 1988) is directed against the award dated 28.06.2016 passed by the 1^st Additional Motor Accidents Claims Tribunal, Sarangarh, Dist. Raiarh (CG) (for short ‘the Tribunal’) in claim case No.11/2015 whereby the appellant/insurance company was held liable primarily to pay compensation. Parties to this appeal are referred herein as per their description before the learned Claims Tribunal.

2. As per pleadings of the claim petition, on 11.01.2014, the deceased – Chatur Sahu was coming from Raigarh to village Salhe on his motorcycle and on way at village Patelpali near Krishi Upaj Mandi Highway Road, he dashed the stationed Bus bearing registration No.CG/13/A/8091 (hereinafter referred to as ‘the offending vehicle Bus’) from rear side, which was parked by its driver/Non-applicant No.1 in a negligent manner and on account of such dash, he died on the spot on account of injuries sustained by him. It is not in dispute that at the time of accident, the offending vehicle was owned by Non-applicant No.2/respondent No.4 herein and insured with Non-applicant No.3/appellant herein.

3. On account of death of deceased, a claim petition seeking compensation of Rs.55,94,000/- under various heads was filed by the claimants/respondents No.1 to 3 herein, inter alia, stating that at the time of accident the deceased was aged about 26 years and was earning Rs.18,000/- per day by working as repairing Mobile sets. The claim was sought to be resisted by the Non-applicants and in particular by the appellant/insurer that there was breach of insurance policy at the time of accident.

4. After conclusion of the trial, the Tribunal held that the accident was solely because of negligence on the part of Non-applicant No.1/driver; the appellant/insurer could not prove any violation of policy, assessed and awarded the compensation of Rs.3,31,000/- in favour of the claimants along with interest @ 6% per annum from the date of claim application till its realisation while making the Non- applicants No.1 to 3 jointly and severally liable to pay the compensation, but primarily holding the appellant/insurer liable for compensation. It is this award making it liable to pay compensation, the appellant/insurer is before this Court.

5. Learned counsel for the appellant/insurance company submits that though the offending vehicle Bus was insured with the appellant/insurance company but the deceased, who was driving motorcycle in a rash and negligent manner, himself dashed the stationery Bus from its back side, therefore, the deceased was fully negligent. She further submits that the offending vehicle Bus was not having valid permit at the time of accident, therefore, the insurance company cannot be held liable for compensation.

6. On the other hand, learned counsel for respondent No.1 to 3 submits that the claimants/respondents No.1 to 3 did not file any appeal against the impugned award. She further submits that the Police, after investigation filed final report against the driver of the offending vehicle Bus for the offence punishable under Sections 337, 304-A IPC and that insurance company has not produced any evidence regarding breach of policy conditions, therefore, the award passed against the appellant/insurance company is just and reasonable and does not call for any interference.

7. I have heard learned counsel for the parties and perused the record along with impugned award.

8. As far as contention of the appellant/insurance company that the deceased himself was negligent on the date of accident is concerned, the statement of A.W.2 Radhe Sahu is crucial as he was pillion rider at that time. As per his statement, he witnessed the accident as on the date of accident, when he and the deceased both were coming towards their village on his (deceased) motorcycle, at the same time at 8:30 pm, a dumper came from front side and because of ref