NATIONAL INSURANCE CO. LTD. Vs. SAJEEV

JUDGEMENT

(1.) The former appeal filed by the National Insurance Company Ltd., arises from an order passed by the Motor Accident Claims Tribunal, North Paravur, on 24.3.2006 in I.A.No.2529/04 in O.P. (MV)No.874/04. The appellant was the 3rd respondent in the claim petition. Essentially, it is an interim award passed under Section 140 of the Motor Vehicles Act. As per the same, the appellant-National Insurance Company Limited, which is the 3rd respondent in the claim petition, was directed to deposit a sum of Rs.25,000/-. Evidently, while issuing such a direction, the Tribunal took note of the fact that Ext.P7 produced before it contained a certification to the effect that the claimant incurred 25% permanent disability due to the injuries sustained in the accident in question, which led to the filing of the above mentioned claim petition. The contention of the appellant in the former appeal is that though the aspect of negligence need not be looked into for passing an interim award under Section 140 of the MV Act, it would not empower the Tribunal to call for an insurer having no statutory liability at all, to indemnify the insured owner of the vehicle allegedly involved in a motor vehicle accident. The foundation for the said contention is that one of the vehicles allegedly involved in the accident, viz., the motorcycle bearing registration No.KL-7/U-3882, though insured with the appellant, was then having insurance coverage only by an 'act only' policy which is distinct and different from package policy/ comprehensive policy inasmuch as, it would not cover the risk of a pillion rider in the said motorcycle. The petitioner in the claim petition was a pillion rider on the aforesaid motorcycle. The appeal was admitted on 23.12.2011 and an interim stay of implementation of the order in I.A.No.2529/04 in the aforementioned claim petition, was also granted by this Court as per order dated 23.12.2011 in I.A.No.1480/06. Evidently, during the pendency of the former appeal, the Tribunal passed the judgment and award in O.P.(MV)No.874/2004 on 15.10.2011. As per the said judgment, the additional 5th respondent-Kerala State Road Transport Corporation, whose vehicle was found involved in the accident, was mulcted with the liability to satisfy the award and the appellant in the former appeal was exonerated fully from the liability. The Tribunal held that the accident had caused due to the negligence on the part of the driver of the KSRTC, viz., the additional 4th respondent. The additional 5th respondent-KSRTC, viz., his employer was held vicariously liable and was directed to satisfy the award since the said bus was not validly covered by an insurance policy. That constrained the additional 5th respondent in the claim petition to prefer the latter appeal. The judgment and the award in O.P.(MV)No.874/04 is challenged in the latter appeal mainly on the ground that the Tribunal had entered into a finding that the occurrence of accident was solely due to the negligence of the additional 4th respondent, is against the weight of evidence and therefore, it is absolutely unsustainable.

(2.) We will refer to the rival contentions, in detail, a little later. As noticed herein-before, as per the judgment in O.P. (MV)No.874/04, the 3rd respondent was completely exonerated from the liability. The learned counsel appearing for the appellant in the former appeal submitted that the order in I.A.No.2529/04 in O.P.(MV)No.874/04, which is under challenge in the former appeal, cannot be sustained in the light of the judgment and award in O.P.(MV)No.874/04. It is submitted that in view of the said judgment, the liability to pay the amount covered by the interim award also should have been saddled on the additional 5th respondent-KSRTC. In the circumstances mentioned above and also taking note of the fact that the appeals arise from one and the same claim petition, though the former appeal arises from an order passed thereon in an interlocutory application and the latter appeal is preferred against the judgment and award, they are jointly heard and are being disposed of by this common judgment. For the sake of convenience, the parties are referred to hereinafter in this judgment in accordance with their status before the Tribunal in O.P.(MV)No.874/04 unless otherwise specifically mentioned.

(3.) After hearing the learned counsel on both sides, we are of the view that it is proper to consider M.A.C.A.No.1904 of 2012, first. Before adverting to the rival contentions raised therein, it is only worthwhile to refer to the facts, in succinct, that led to the filing of the claim petition. At the time of the accident, the petitioner was aged 27 years. He claimed to be a mason by profession. On 18.2.2004 at about 10 p.m., he was travelling as a pillion rider on the motorcycle bearing registration No.KL-7/U3882 through Aluva-Paravur public road from west to east. The 1 st respondent was the rider of the said motorcycle. When the motorcycle reached Anachal, it collided with a KSRTC bus that came from the opposite direction. The petitioner sustained serious injuries which admittedly resulted in 25% permanent disability. It is seeking compensation for the injuries sustained by him and caused permanent disability that he filed the claim petition seeking a total compensation of 13,82,000/- which was ? limited to 10 lakhs. It was filed under Section 166 of the Motor Vehicles Act, 1988. Before the Tribunal, the claimant got himself examined as PW1 and on the side of the respondents, one Sabeesh and Sreenivasan were examined respectively as RWs.1 and 2. On the side of the petitioner, Exts.A1 to A9 were got marked and on the side of the respondents, a copy of the insurance policy document was marked as Ext.B1. The Tribunal on appreciation of evidence and the rival contentions, passed the impugned award; whereby a compensation of 4,13,760/- with interest @ 7.5% per annum from the date of petition till realisation was granted. The additional respondents 4 and 5 therein were held jointly and severally liable to compensate the petitioner and the claim put forth against respondents 1 to 3, viz., the appellant in the former appeal and respondents 1 and 2 therein, who are respectively the rider, owner and insurer of the motorcycle bearing registration No.KL-7/U-3882, was dismissed.