K. KANNAN, J.

1. The appeal is by the insurer on a plea of exclusion of liability cast for death of a pillion rider in a motorcycle. A two-wheeler in which the deceased was travelling was admittedly under a package policy that covered the risk to the pillion rider as well.

2. The argument of the learned counsel for the insurer is that the vehicle in which the deceased was travelling was hit from behind by an unknown vehicle and the driver of the motorcycle had originally given a complaint which was lodged as FIR that he was going on the left side of the road and an unknown vehicle had dashed against him that resulted in his falling from the vehicle to the kutcha portion of the road, while the deceased fell on the concrete portion of the road and obtained fatal injuries. At the time of trial, according to the counsel, the claimants were trying to improve the version by bringing an evidence of one Raj Kumar whose name was not found anywhere mentioned in the FIR as having followed the motorcycle in which the deceased was driving and through him the evidence was given that the motorcyclist was going at high speed and an unknown vehicle had dashed against, it as if to suggest the negligence as purely of the motorcyclist in driving the motorcycle at a high speed.

3. According to the appellant, the petition had been filed under Section 166 of the Motor Vehicles Act and therefore, there was a compulsion for the pillion to prove to the negligence of the insured's vehicle and if statement of Raj Kumar were to be discarded as unworthy as a got up witness, the statement given by Satpal, the driver of the mother, and recorded in FIR alone would obtain credence. He would argue that the driver of the motorcycle was sought to be brought as a witness by summons on payment of diet money but he was not prepared to take the witness stand. The claimants themselves did not take the courage to bring him as a witness to explain the statement in the FIR. This, according to him, would prove that there was no negligence on the part of the driver of the motorcycle and the insurer could have been made liable only for no fault liability under Section 140 of the Motor Vehicles Act. The counsel would place reliance of a judgment of the Supreme Court in A. Sridhar vs. United India Insurance Company Limited, 2001 (4) PLR 804 that dealt with a case of an accident due to oil spill on the road and when the court found that the accident did not occur on account of the negligence, the Supreme Court had observed that the High Court was justified in directing compensation to be paid under Section 140 only.

4. In any accident involving two vehicles, as far as a person who was passenger or a pillion rider, the accident must always be understood as resulting from composite negligence of two vehicles. An accident simply does not happen with zero negligence on one side. It is the lack of attention for a split second that must be understood as the cause for many a debacle on roads. A careful motorcyclist going on the left side getting hit from behind, if tactful could still steer to a place of safety, though such skill might be extraordinarily rare. It is not as if the deceased died out of any injury by a direct impact of an unknown vehicle on any vital part of the body and the motorcyclist himself could take no part of the blame. It was, on the other hand, that the motorcyclist was fortunate to fall on the mud portion of the road and it was the fall on the concrete surface that caused the death of the deceased pillion rider. In such a situation, I will take surely that there was a modicum of negligence on the part of the insured motorcyclist. It will be wholly wrong to make an inference that the motorcyclist was careful in causing death of the pillion rider. Such an expression would be an oxymoron. Accident and alertness are antithetical. The existence of one rules out the other. A careful motorcyclist may never have involved even a pillion rider in the misfortu