HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case A.O. No. 567 of 2006 National Insurance Co. Ltd. Vs. Pushpa Rawat and others. Approved for reporting Not Approved for reporting Date of Decision: - 07.01.2008. Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 567 OF 2006 National Insurance Company Limited, Through its Divisional Manager, Divisional Office, 5/22, Canal Road, Tikonia, Haldwani, District Nainital. ...........Appellant. Vs. 1. Pushpa Rawat, Aged 20 years, D/o Sri Bhagwan Singh Rawat, R/o Upper Chirowala, P.O. Kandoli, P.S. Raipur, District Dehradun, Through her mother Smt. Kunwari Rawat, Wife of Sri Bhagwan Singh Rawat. 2. Ashok Manocha, S/o Sri J.K. Manocha, R/o House No. 10, Line No. 2, Kali Mandir, Enclave, Dehradun. 3. Sri Tarun Pawar, S/o Sri Dharamvir Singh, 59, Rajpur Road, Dehradun. 4. Sri Anubhag Gupta, R/o G-54, Hathi Barkala Estate, Dehradun. 5. Rakesh Gupta, S/o Sri I.C. Gupta, R/o 45, Idgah, Kumharmandi, Dehradun. ....Respondents. Dated : 7.1.2008 Hon’ble Rajesh Tandon, J. Heard Sri B.K. Gupta, counsel for the appellant and Sri Kishore Kumar, counsel for the respondent. 2. By the present A.O. filed under Section 173 of the Motor Vehicles Act, appellant has prayed for setting aside the award dated 5.8.2006 passed by the Motor Accident Claims Tribunal / Additional District Judge / VIth Fast Track Court, Dehradun in Motor Accident Claim Case No. 3176 of 2005 Pushpa Rawat Vs. Ashok Manocha and others whereby the claimant has been awarded a sum of Rs. 1,54,000/- towards compensation. 3. Briefly stated, a claim petition was filed by the claimant / respondent no. 1 being Motor Accident Claim Case No. 3176 of 2005 Puspha Rawat Vs. Ashok Manocha and others claiming a sum of Rs. 22,00,000/- towards compensation. 4. According to the claimant, on 11.10.2005 she was going on Scooter No. U.P. 07 1989 as a pillion rider to Sagunj Wedding Point, Saharanpur to attend a marriage party. The said Scooter was being driven was one Anubhav Gupa. As soon as the reached near R.T.O. Office, Rajpur Road, Dehradun at about 8 p.m., a Maruti Car No. U.A. 07E-8300, which was coming from the same direction, Scooter collided with the said Maruti Car. The Scooter in question was being driven rashly and negligently by its rider. In this accident, the claimant received grievous injuries on whole part of his body. She was rushed to C.M.I Hospital, where she remained admitted for six days. At the time of accident, the claimant was 20 years of age. She had done B.Com and Computer Course. She used to work at Survey of India and was getting a sum of Rs. 3,600/- per month towards salary. She remained in Coma upto to four months. She has become disabled and she has to take help of others in moving and sitting. She has stated that she has incurred a sum of Rs,. 38,000/- on her treatment. 5. The owner of the Car has contested the claim by filing a written statement stating therein that the accident did not take place due to rash and negligent driving of the driver of the Maruti Car but it took place due to rash and negligent driving of the rider of the Scooter. Further it has been stated that the claimant has not claimed any relief from the owner of the Car, thus, the claim petition is liable to be dismissed. 6. Owner and Rider of the Scooter have contested the claim by filing a joint written statement stating therein that the scooter in question was being driven cautiously in a moderate speed by its side and at the time of accident, the driver was holding valid and effective driving licence. It has further been stated that the Scooter in question is insured with the national Insurance Company and if the claimant is entitled to get any compensation, Insurer will be liable to indemnify the same. It has further been stated that the accident had taken place due to rash and negligent driving of the Maruti Car No. U.A. 07E- 8300. 7. National Insurance Company has also contested the claim by filing a written statement stating therein that the accident took place due to rash and negligent driving of the driver of the Maruti Car No. U.A. 07E-8300 and not due to rash and negligent driving of the Scooter in question. It has further been stated that at the time of accident, the claimant was going towards Clock Tower, and the Scooter in question was going towards Clock Tower, and the Scooter in question was being driven by Anubhav Gupta left side in a moderate speed and as soon as the scooter reached near R.T.O. Office at about 8 p.m. Maruti Zen Car No. U.A. 07E-8300 which was being driven rashly and negligently by its driver dashed the scooter and the accident took place. In this accident, the rider of the scooter is not at fault and therefore, Insurer is not liable to pay compensation. 8. Tarun Panwar did not file any written statement, therefore, the matter proceeded ex parte, against him. 9. On the pleadings of the parties, claims tribunal has framed the following issues: “1& D;k nq?kZVuk fnukad 11&10&2005 le; 8 cts jkf= LFkku vkj0Vh0vks0 vkfQl jktiqj jksM] nsgjknwu LdwVj ua0 ;w0ih0&7] 1898 ds pkyd dh rsth o ykijokgh ds QyLo:i ?kfVr gqbZ ftlesa ;kph dks xEHkhj pksVsa vkbZ\ 2& D;k ;kph fdlh vuqrks"k dh vf/kdkfj.kha gS] ;fn gka rks fdruk vkSj fdl i{kdkj ls\ 10. On behalf of the claimant, Smt. Kumari Rawat and Arvind Kumar have been examined as P.W.1 and P.W.2 respectively. Towards the documentary evidence, claimant has filed Insurance Policy, Driving Licence of the rider of the Scooter, copy of the F.I.R., bills regarding treatment Paper No. 28 GA to 39 Ga, Paper No. 41 Ba, Report of Dr. Kudiyal, copy of the salary certificate issued by Bhartiya Sarvekshan Vibhag Showing the salary of the claimant as Rs. 3592.67 per month. 11. On behalf of the owner and driver of the Scooter, Anubhav Gupta has been examined as D.W.1. 12. On behalf of the issue as to whether on 11.10.2005 at about 8 p.m. near R.T.O. Office, Rajpur Road, Dehradun, an accident took place due to rash and negligent driving of the rider of the Scooter No. U.P. 07 1898, in which the claimant received grievous injuries, claims tribunal has placed reliance on the statement of the P.W.2 Arvind Kumar. He has stated that on 11.10.2005 at about 8 p.m., when he was standing near R.T.O. Office, Rajpur for lightening the cigarette, both the vehicles involved in the accident passed from there, the speed of the car was slow, but the scooter was being driven in a high speed. One girl was sitting on the scooter. The scooter was being driven rashly and negligent and it collided with the Car in question. Further reliance has been placed on the First Information Report, wherein it has been stated that the Car dashed the Scooter from the back side P.W.2 has stated that the car in question was in slow speed and D.W.1 has stated that the car was parked. Further relying upon the aforesaid, the claims tribunal has recorded a finding that the accident took place due to contributory negligence of both scooterist as well as Car to the extent of 70% and 30% respectively. 13. While deciding the issue with regard to quantum of compensation, claims tribunal has placed reliance on the salary certificate of the claimant, which shows that the salary was Rs. 3,592.67 per month and bills of treatment and the claims tribunal has recorded a finding that the claimant is entitled to get a sum of Rs. 1,30,000/- for loss of income fro three years, Rs. 50,000/- towards medical expenses, Rs. 20,000/- towards mental and physical agony, Rs. 20,000/- towards future expenses total Rs. 2,20,000/-. Further the claims tribunal has recorded a finding that since the claimant has not claimed any relief from the car owner, therefore, the Car owner will not be liable to pay 30% of the awarded amount. Therefore, 70% of the amount i.e. Rs. 1,54,000/- shall be payable by the Insurer of the Scooter as the scooter in question was insured with the appellant. 14. Counsel for the appellant has submitted that there was contributory negligence on the part of both the vehicles involved in the alleged accident, but the tribunal concerned has wrongly and illegally assumed that the Scooter driver was more negligent to the extent of 70% then the driver of Maruti Car to the extent 30% 15. I have gone through the award passed by the claims tribunal and the statement given by the P.W.2, who is the ocular witness of the accident. He has stated that the accident took place due to rash and negligent driving of the driver of the scooter in question and further the claimant has herself stated that the scooterist was riding the scooter rashly and negligently by its rider, therefore, there does not appear any illegality with the findings recorded by the claims tribunal concerned. 16. Counsel for the appellant has further submitted that the vehicle involved was plying against the terms and conditions of Insurance Policy and the owner of the vehicle was liable to pay the amount of compensation and the appellant Insurance Company is not liable to pay compensation. 17. I have gone through the driving licence produced by the opposite parties, which was valid and effective at the time of accident, and, further the scooter in question was validly insured with the appellant, therefore, the appellant has rightly been held liable to pay compensation. 18. Further, premium has been paid for two seats, therefore, the claimant cannot be said to be a gratuitous passenger. 19. Counsel for the appellant has referred United India Insurance Co. Ltd. Vs. Tilak Singh & Ors. II (2006) ACC 1 (SC), where it has been observed as under: “12. In Rikhi Ram v. Sukhrania, 2003 ACJ 534 (SC), a Bench of three learned judges of this court had occasion to consider section 103-A of the 1939 Act. This court re-affirmed the decision in G. Govindan’s case, 1999 ACJ 781(SC) and added that the liability of an insurer does not cease even if the owner or purchaser fails to give the intimation of transfer to the insurance company, as the purpose of the legislation was to protect the rights and interest of the third party. 13. Thus, in our view, the situation in law which arises from the failure of the transfer of ownership of the insured vehicle is no different, whether under section 103-A of the 1939 Act or under section 157 of the 1988 At insofar as the liability towards as third party is concerned. Thus, whether the old Act applied to the facts before us, or the new Act apples, as far as the deceased third party was concerned, the result would not be different. Hence, the contention of the appellant on the second issue must fail, either way, making a decision on the first contention unnecessary, for deciding the second issue. However, it may be necessary to decide which Act applies for deciding the third contention. In our view, it is not the transfer of the vehicle but the accident for the application before the Tribunal. Undoubtedly, the accident took place after the 1988 Act had come into force. Hence it was the 1988 Act which would govern the situation. 21. In our view, although the observations made in Asha Rani’s case, 2003 ACJ 1 (SC), were in connection within Rani’s passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant insurance company that it owned no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy and hence it did not cover the risk of death of or bodily injury to gratuitous passenger.” 20. In the aforesaid case, the vehicle was a goods vehicle, but in the present case, the vehicle in question is not a goods vehicle. Vehicle being a two wheeler, the premium has been paid for two seats, thus, the aforesaid case law is not applicable in the present case. 21. Further counsel for the appellant has submitted that the amount towards medical treatment has been paid to the extent of Rs. 50,000/- though the bills have been submitted to the extent of Rs. 38,000/-. 22. The claims tribunal has recorded a finding that the scooterist was fault at 70% and the driver of the car was fault at 30%. It there was contributory negligence of both driver of the car as well as the scooter, both will be responsible to pay amount of compensation in the ratio of 50:50. 23. Since, the amount of compensation has worked out to Rs. 2,00,000/-, therefore, according to the aforesaid ratio, the appellant (Insurer of the Scooter) shall be liable to pay a sum of Rs. 1,00,000/- towards compensation. 24. So far as the question payment of excessive amount towards medical bills are concerned, I do not want to interfere with the same as the claims tribunal has not awarded any amount towards non – pecuniary loss. 25. Subject to aforesaid modification in the payment of award to the extent of Rs.1,00,000/-to be payable by the appellant, A.O. partly succeeds and is allowed. No order as to costs. (Rajesh Tandon, J.) 7.1.2008 Rathour