A comprehensive insurance policy for two-wheelers covers liability for pillion riders, and the principle of res ipsa loquitur applies to establish negligence in accident cases.

JUDGMENT

Meenakshi Madan Rai, J. - The Appellant herein assails the Judgment and Award of the Learned Motor Accidents Claims Tribunal, South Sikkim, at Namchi (for short, 'Learned Claims Tribunal'), dated 11-03-2019, in MACT Case No.04 of 2018.

2. Learned Counsel for the Appellant contends that his challenge is two-pronged, the first being that rash and negligent act of the driver of the two wheeler has not been proved, and secondly, the pillion rider being a gratuitous passenger was therefore not covered by the Policy of Insurance. That, in view of the said arguments, the impugned Judgment and Award of the Learned Claims Tribunal ought to be set aside.

3. Per contra, Learned Counsel for the Respondents submits that in the first instance the ground of gratuitous passenger was never agitated by the Appellant before the Learned Claims Tribunal and a fresh ground cannot now be raised at the appellate stage. That, the fact of the accident itself establishes the rash and negligent act of the driver of the two wheeler. That, before the Learned Claims Tribunal the Appellant did not deny its liability. Hence, the impugned Judgment and Award of the Learned Claims Tribunal requires no interference.

4. Having heard Learned Counsel for the parties in extenso, I have also perused the documents on record as well as the evidence.

5. The facts briefly narrated are that a Claim Petition was filed by the Respondents No.1 to 3 claiming compensation on account of the death of the deceased in a motor cycle accident on 15-05-2017 near Jorethang-Legship Road, South Sikkim. The deceased was riding pillion on the motor cycle. The total compensation claimed was Rs.32,86,000/- (Rupees thirty two lakhs and eighty six thousand) only. On consideration of the evidence on record, the Learned Claims Tribunal granted a compensation of Rs.26,64,200/- (Rupees twenty six lakhs, sixty four thousand and two hundred) only, and directed the Appellant herein to pay the said compensation with interest @ 10% per annum from the date of filing of the Claim Petition till full and final payment.

6. In the first instance, it must be pointed out that as submitted by the Respondents there is no averment pertaining to the question of gratuitous passenger in the written statement of the Respondent No.1, the Appellant herein, before the Learned Claims Tribunal and hence, I am not inclined to consider this ground as a new ground cannot be raised in Appeal, this being a settled position of law. Secondly, so far as the question of rash and negligent driving not having been established, it is apposite to state here that there is no denial that the accident occurred which resulted in the unfortunate death of the pillion rider subsequently. The principle of res ipsa loquitur thus falls into place, which applies to a situation when the mere happening of the accident is more consistent with the negligence of the defendant than with other cause. Besides the principle of res ipsa loquitur, Exhibit 9 indicates that a Final Report under Section 174 of the Code of Criminal Procedure, 1973, was submitted reporting therein the unnatural death of the deceased Diwas Rai. Investigation revealed that on 15-05-2017, at around 1915 hours, a telephonic information was received from ASI Jitman Subba stating that at around 1900 hours a motor bike bearing number SK 04 P 5250 (Royal Enfield) with two riders while going to Sikkip, West Sikkim from Jorethang were buried under the debris at Sikkip leading to the death of the driver and the rider was evacuated to the Hospital, but succumbed to his injuries on road. No cross-examination of any witness demolished this document and the facts