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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Amol Rattan Singh, J.
New India Assurance Co. Ltd. - Appellant
Vs.
Seema Devi And Others - Respondent
First Appeal From Order No. 333 of 2017
Decided On : 28-05-2019
(A) Motor Vehicles Act, 1988, S.166--Accident--Gratitutious Passenger--Such passenger if travelling in a private vehicle is a "third party"--Insurance Company liable to pay.
(B) Motor Vehicles Act, 1988, S.166--Accident--Gratitutious Passenger--What is applicable in respect of a goods vehicle cannot be held to be applicable in the case of a private vehicle--Therefore a pillion rider on a two wheeler insured with an insurance company, would be covered within the term "third party", and Insurance Company held liable to pay--Held; Section 147(1)(b)(i) of the Act of 1988 simply refers to the death of or bodily injury to any person, suchdistinction (between the case of a goods vehicle and any other vehicle), was not clearly brought out before the Supreme Court in Tilak Singh's case. (Para 33)
The judgment in Tilak Singhs' case has also been referred to, wherein their Lordships had held that what is applicable to a gratuitous passenger in a goods vehicle is also applicable to such a passenger in other vehicles. Yet, having noticed the above, it was further held in Shiv Lochan Singh, that the definitions of "motor car", "motorcycle" and "goods carriage" were obviously not brought to the notice of the Supreme Court, specifically the fact that in the new Act (of 1988), where the definition of goods carriage has been changed from that given in the old act; and therefore a goods carriage vehicle is not authorised to carry any passengers, either gratuitous or paying passengers. Hence, it has been held that what is applicable to a goods carriage, cannot be held applicable to a motor car or a motorcycle. (Para 31)
More importantly, it needs specific notice here that the judgment of this court in Shiv Lochan Singhs' case having been appealed against before the Supreme Court, the following order has been passed by their Lordships in Special Leave to Appeal (C) No.9593-9594/2018, on 19.04.2018:- "Leave granted to consider the question of law VI proposed in the petition. No stay." (Emphasis as regards the Supreme Court order, applied in this judgment only). Thus, very obviously, despite the fact that the judgment of this court holds something contrary to what has been held in Tilak Singhs' case by the Supreme Court, their Lordships still did not grant any interim relief to the insurance company as had appealed against this courts' judgment, with the question of law involved still to be considered by the Apex court. Hence, the operation of the judgment of this court in Shiv Lochan Singhs' case not having been stayed by the Supreme Court, I would eventually find no hesitation in dismissing this appeal qua the prayer of the appellant insurance company seeking to be absolved of any liability to pay compensation to the respondent claimants. (Para 34)
JUDGMENT :
Amol Rattan Singh, J.
This is an appeal filed by the insurance company as has been held liable to pay compensation to respondents no. 1 to 4 herein by the learned Motor Accidents Claims Tribunal, Chandigarh, vide its Award dated 18.10.2016, such compensation being of an amount of Rs. 18,89,640/- + interest @ 6% per annum on the aforesaid amount, running from the date of the filing of the claim petition, till the realization of the amount.
Such interest was however ordered to be increased to 12% per annum, starting from the date of the filing of the claim petition till realization, if the amount was not paid within two months of the date of the Award.
Other than that, costs of Rs. 2,000/- have also been awarded to the said respondents, who were the claimants before the Tribunal.
The claimants had sought compensation on account of the unfortunate death of Pawan Kumar, husband of the first respondent, father of respondents no. 2 and 3 and son of respondent no. 4.
2. The facts giving rise to the institution of the claim petition under Section 166 of the Motor Vehicles Act, 1988, are that (as per the respondent-claimants), Pawan Kumar was going from Mullanpur Garibdass to village Nada, seated pillion on a motor-cycle bearing registration no. PB-65-L-2335, owned and driven by respondent no. 5 herein, i.e. Jarnail Singh, who is contended to have been driving the motor-cycle in a rash and negligent manner.
As per the claimants, when the motor-cycle reached near the Gurdwara Sahib in the area of village Shingariwala, an unknown car came at a fast speed from village Jayanti Majra from the opposite side, and struck against the motor-cycle, which, as already said, was alleged to have been driven in a rash and negligent manner.
Due to the accident, Pawan Kumar received serious injuries and upon being taken to the hospital, was declared to have been brought dead.
Thus, as per the respondents-claimants, the accident took place due to the negligence of both, respondent no. 5, as also the driver of the unknown car.
3. It was further contended that Pawan Kumar was 37 years old, a labourer earning about Rs. 12,000/- per month and that the claimants therefore, being completely dependent upon him for their livelihood, Rs. 75,00,000/- was payable as compensation by the respondents.
4. The registration number and identity of the car and its driver not having been known, it was only respondent no. 5 herein, i.e. Jarnail Singh, rider (driver) of the motor-cycle, who was impleaded as a respondent in the claim petition, along with the insurance company that had insured the motorcycle, the said company being the appellant in this appeal, i.e. the New India Assurance Company Ltd.
5. Upon notice having been issued by the learned Tribunal, respondent no. 5 herein filed a written statement admitting therein that the accident in question took place, however denying that it was due to any negligence on his part, further stating that the amount of compensation sought was highly exaggerated.
He also stated that the accident had actually taken place due to the negligence of the driver of the car that had come from the opposite direction and had hit the motor-cycle, with the car having been then driven away from the spot.
Yet further, it was contended by respondent no. 5 that he had a valid and effective driving licence and with the motor-cycle being duly insured, it was the liability of the insurance company to pay any compensation, if it was found payable by the Tribunal.
6. The present appellant, i.e. the aforesaid insurance company, filed a separate written statement taking preliminary objections on lack of cause of action against it, there being collusion between the claimants and the rider/driver of the motor-cycle, and that the 'driver' (respondent no. 5 herein) was not holding a valid and effective driving licence and therefore there was a violation of the terms of the insurance policy.
It was further contended by the present appellant in its written statement,
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