F.A.O.NO. 4615 OF 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 4615 OF 2003 Date of decision:13th September, 2010 The Oriental Insurance Company Ltd. through its Assistant Manager, Regional Office, Sector 17-D, Chandigarh .......Appellant Versus Smt. Vandana Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. S.P.Singh, Advocate for Mr. Amit Rawal, Advocate, for the appellant. Mr. Tapan Kumar, Advocate, for respondent Nos. 1 to 3. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is on appeal on an issue of liability. The insured's vehicle was a motor cycle in which the deceased was travelling as a pillion rider. It was stated in the FIR that 'Tata Mobile' vehicle dashed against motor cyclist and caused the accident resulting in death of the pillion rider. The claimants evidently did not have the details of the Tata Mobile vehicle and therefore, filed the case only against a owner of the motor cycle and the insurer of the motor cycle. It has been pointed out that the owner was his own brother in law. The policy F.A.O.NO. 4615 OF 2003 2 of the Insurance was a package policy and covered the risk to the pillion rider of the motor cycle also. The Insurer's contention is that the case was the result of collusion between the claimants and the owner of the motor cycle who was a very close relative. The Tribunal rejected the case of collusion by stating that it was not even suggested so at the trial. 2. I will not join an issue of collusion at all for, it is irrelevant in a case where an Insurer shall become liable under the package policy for a death arising to a pillion rider. The involvement of it with another vehicle, if it is not established in any way, it cannot go against the interest of the claimant. It shall be for the insurer to undertake its own enquiry and secure such a relief after satisfying the claim by independent proceedings. The case itself could not have been rejected on any ground for, as far as the pillion rider was concerned, the case was a composite negligence of the owner of the driver of the motor cycle and another vehicle alleged to have been involved in collision. There is no requirement in law for a claimant to make both the vehicles as party litigants. In a case by a driver of the motor cycle or his representative, a case of contributory negligence could be made. However, if the claim is at the instance of the third party or pillion rider then negligence, whether it is established or not, is irrelevant and if a claim is made by invoking the terms of package policy against the insurer, the claimants cannot be non suited. 3. The award of the Tribunal under circumstances is F.A.O.NO. 4615 OF 2003 3 upheld. The insurer shall satisfy the claim. It shall however have a liberty of taking independent action for recovery of the sum against the owner and insurer of the Tata Mobile vehicle if its identity with reference to the vehicular details is traced, within a period of limitation and if such a fact is established in any independent proceedings. The appeal is dismissed. [K.KANNAN] JUDGE 13th September, 2010 Shivani Kaushik