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PARMANAND GAUR

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CASE NO.:

Appeal (civil) 2892 of 2008

PETITIONER:

Oriental Insurance Co. Ltd

RESPONDENT:

Rajni Devi & Ors

DATE OF JUDGMENT: 22/04/2008

BENCH:

S.B. Sinha & V.S. Sirpurkar

JUDGMENT:

J U D G M E N T

REPORTABLE

CIVIL APPEAL NO. 2892 OF 2008

(Arising out of SLP (C) No.11521 of 2007)

S.B. Sinha, J.

1. Leave granted.

2. Respondent filed an application under Section 163-A of the Motor

Vehicles Act, 1988 (the Act) claiming compensation for death of one Janak

Raj (the deceased). He was riding on a motorcycle along with one Sukhdev

Raj. Who was actually on the driver’s seat is not known. The motorcycle is

said to have gone out of control resulting in the accident.

3. Appellant herein, having been issued notice, resisted the claim, inter

alia, contending that although the owner of the vehicle deposited an extra

amount of Rs.50 covering his personal insurance, the same would not cover

the case of the pillion rider and in any event, the owner of the vehicle is not

a third party within the meaning of Section 147 of the Act.

The Motor Vehicles Accident Claims Tribunal, having regard to the

pleadings of the parties, framed the following issues :

"1. Whether on 7.9.2004 at 4.05 pm Janak Raj

had died in a road accident? OPP

2. Whether the Claimants are LRs and were

dependant upon the deceased? OPP

3. Whether the claimants are entitled to

compensation? If so, how much and from

which of the respondents? OPP

4. Whether the motorcycle was being driven in

contravention of terms and conditions of the

insurance policy? OPR

5. Whether the driver of the motorcycle was

not holding a valid and effective driving

licence? OPR

6. Whether the claim petition is bad for non-

joinder of necessary parties? OPR

7. Relief."

4. The Tribunal noticed that the First Information Report (FIR) lodged at

the Police Station in relation to the said accident was not clear to establish as

to who was driving the motorcycle but despite the same proceeded to

determine the question as to whether Janak Raj being himself the tort feasor,

any application under Section 163-A of the Motor Vehicles Act was

maintainable. The premise on which the Tribunal proceeded to determine

the said issue was that a comprehensive insurance policy having been taken,

the only question which arose for its consideration was as to whether the

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accident took place by reason of use of the motor vehicle irrespective of the

fact as to whether the deceased or the said Sukhdev Raj was driving the

motorcycle or not. It, however, held that if the deceased was the tort feasor,

the question of reimbursement of any amount of compensation by the insurer

would not arise, opining :

"If we presume that deceased had no

comprehensive policy even then, claimants are

entitled to compensation because evidence is silent

as to who was driving the offending vehicle."

5. On issue Nos.4, 5 and 6, the Tribunal held :

"Onus to prove all the issues was upon the

Insurance Company. As discussed in the

preceding issues, offending vehicle was insured

but no evidence on the file as to who was driving

the motor cycle. That is whether Janak Raj was

driving the motorcyele or Sukhdev Raj Was

driving the motorcycle. Janak Raj and Sukhdev

Raj were on the motor cycle. Both received

injuries in the accident. Sukhdevraj had

succumbed to his injuries in the Civil Hospital,

Dalhousie. Janak Raj was shifted to different

hospitals. Ultimately, Janak Raj had also

succumbed to his injuries. Motorcycle was owned

by Janak Raj. Counsel for the company failed to

convince how the petition is bad for non-joinder of

necessary parties and what is the effect of non-

production of driving licence when evidence is not

clear as to who was driving the offending vehicle.

So, all the issues are decided against the Ins