Allowed

National Insurance Company Ltd. v. Pushpa Devi and Ors.

Patna HC3 Jul 2013MA/256/2012

Case brief

AI extract

What is this about?

The Patna High Court modified a Motor Accident Claim Tribunal award, holding the appellant insurer liable only up to the policy limit of Rs. 1 lac instead of 50% of the total compensation, as no contributory negligence was established against the deceased's driver.

What did the court decide?

Appeal allowed with modification reducing appellant's liability to Rs. 1,00,000 against the total award of Rs. 4,49,100.

National Insurance Company Ltd. Vs Pushpa Devi and Ors. — Insurance | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.256 of 2012

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====================================================== National Insurance Company Ltd., C/o Anamica Automobiles, NH 107, Road, Hatiya Gachi, Purab Bazar, Saharsa through its Divisional Office, NH 31, Purnia through the Chief Regional Manager and constituted attorney having its Regional office at Sone Bhawan, B.C. Patel Path, Patna. .... Opposite Party No.3 .... Appellant/s Versus

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Pushpa Devi, W/o Late Bal Kishore Yadav alias Bablu Yadav.

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Mannu Kumar, son of late Bal Kishore Yadav.

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Annu Kumari, D/o Late Bil Kishore Yadav.

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Both 2 & 3 are minor son and daughter represented through their

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mother and natural guardian Pushpa Devi.

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All are residents of Village- Bishanpur, P.S. - Kasba, District- Purnia.

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…….Applicants….Respondent 1^st Set.

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1. Kali Charan Malakar, son of late Ritlal Malakar, At & P.O.- Dumar, P.S.- Halka, District- Katihar. (Owner of Bolero Jeep No.BR-11D/8442

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United India Insurance Company Ltd., Branch Office- Alam Market, Girls High School Road, P.O. & District- Katihar (Insurer of Bolero Jeep No.BR11D/8442). .... Opposite Party nos.1 & 2 .... Respondents 2^nd Set.

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====================================================== Appearance : For the Appellant/s : Mr. Raj Kumar Singh Vikram For Respondent Nos.1 to 3: Mr. Jagdish Prasad Bhagat For Respondent no.4 : Mr. Jibendra Mishra For Respondent No.5 : Mr. Ashok Priyadarshi

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====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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6 03-07-2013 Heard Mr. Raj Kumar Singh Vikram, learned counsel

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appearing for the appellant-insurance company, Mr. Jagdish Prasad Bhagat, learned counsel appearing for the claimantsrespondent nos.1 to 3, Mr. Jibendra Mishra for the owner of the vehicle, respondent no.4 and Mr.Ashok Priyadarshi, learned counsel appearing for United India Insurance Company, respondent no.5.

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This application under section 173 of the Motor

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Patna High Court MA No.256 of 2012 (6) dt.03-07-2013

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) is directed against the judgment and award dated 16.12.2011/30.1.2012 passed by the learned Additional District Judge F.T.C.-1^st –cum-Motor Vehicle Accident Claim Tribunal, Purnia, whereby the learned tribunal while allowing the claim has bifurcated the compensation amount between the appellant and respondent no.5 into half and half.

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The only issue raised by the appellant-insurance company who is the insurer of the motorcycle which met with an accident with the Bolero vehicle of which the insurance company is the respondent no.5 is that in absence of there being any finding of contributory negligence, merely on the circumstance that the vehicles were being driven by the respective drivers and that both the vehicles are insured, the liability could not have been cast on the appellant-insurance company and that also to the extent of 50 per cent. Upon query, learned counsel with reference to the insurance policy covering the motorcycle on which the deceased was riding has submitted that the personal accident insurance of the driver of the motorcycle is to the extent of one lac.

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Since there is neither any dispute on facts nor on the compensation amount hence this Court does not feel the necessity

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Patna High Court MA No.256 of 2012 (6) dt.03-07-2013

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to refer to the facts of the matter in issue. Suffice it to say that the husband/father of the claimants while going from Purnia to his house at Kishanpur on his motorcycle bearing registration no.BR19B/8516 met with an accident being hit by a Bolero Jeep bearing Registration No.BR-11D/8442. The claimants charging the driver of the Bolero jeep with negligent and rash driving set up the claim and which has since been allowed. The issue posed before this Court is already outlined hence needs no reiteration.

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Mr. Ashok Priyadarshi, learned counsel for respondent no.5 has submitted that since the drivers of the vehicles were held liable for contributory negligence, hence the award being apportioned between the insurers of the two vehicles, is perfectly in order and requires no interference.

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The compensation awarded by the tribunal is not in issue rather the only issue is whether the appellant-insurance company being the insurer of the motorcycle on which the deceased was riding, can be saddled with 50% of the compensation amount in absence of evidence of contributory negligence, as contended by learned counsel the appellant has to be considered in the backdrop of the conditions of the policy and the finding of the tribunal.

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Perusal of the judgment and award manifests that the

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Patna High Court MA No.256 of 2012 (6) dt.03-07-2013

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conclusion drawn by the tribunal dividing the compensation amount half and half in between the two insurance companies is only on grounds that the vehicles were being driven by the respective drivers. The award is absolutely silent on the issue of contributory negligence and thus the arguments advanced by Mr. Priyadarshi in support of the award can not be upheld.

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The issue yet remains whether or not the appellantinsurance company was liable for payment of any compensation. The lower court records have been summoned in the present proceeding and a copy of the insurance policy relating to motorcycle was produced before this Court by the learned counsel appearing for the claimants and a perusal thereof manifests that the appellant-insurance company is bound for making payment of an insurance amount of rupees one lac against the personal accident insurance. Thus in so far as the conclusion drawn by the tribunal requiring the appellantinsurance company of sharing the part of the compensation amount is concerned, no irregularity can be found therein save and except that the quantum of compensation in terms of the policy would bind the appellant-insurance company to make payment up to rupees one lac.

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That being the position as manifests from the records,

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Patna High Court MA No.256 of 2012 (6) dt.03-07-2013

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the award in question stands modified to the extent that now, of the total compensation amount of Rs.4,49,100/- awarded by the tribunal, the appellant-insurance company would be liable to make payment of Rs.1,00,000/- (one lac) in terms of the conditions of the policy relatable to the motorcycle in question while the balance amount of Rs.3,49,100/- shall be payable by respondent no.5-insurance company. Having held as such this appeal is allowed with the modification in the award to the extent discussed hereinabove. The tribunal shall proceed accordingly. Let the statutory amount deposited by the appellant-insurance company be remitted to the tribunal for disbursement in accordance with law. The appellant and respondent no.5 shall proceed to discharge the obligation in terms of the modification set up hereinabove within the period stipulated in the award itself, i.e. within a period of two months from today.

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Let the lower court records be returned to the tribunal concerned forthwith in a sealed cover.

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(Jyoti Saran, J)

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SKPathak/-

National Insurance Company Ltd. v. Pushpa Devi and Ors.

Case brief

What is this about?

What did the court decide?

National Insurance Company Ltd. v. Pushpa Devi and Ors.

Case brief

What is this about?

What did the court decide?

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