ASHIM KUMAR BANERJEE,J. - (1.) The dispute comes in a short campus as to whether the Insurance Company had any liability toward a pillion rider of the victim motor cycle. The Tribunal held that since he was a gratuitous passenger, the Insurance Company had no liability. The Tribunal failed to appreciate the decision relied upon by the Tribunal in the case of United India Insurance Co. Ltd. v. Tilak Singh and Ors., reported in 2006 (2) T.A.C. 312 (S.C.) where the insurer of the scooter itself was involved in the litigation. In the instant case the Insurance Company of the offending truck was the defendant. The claimant is free to chose his defendant as observed by the Division Bench of this Court in the case of The National Insurance Co. Ltd. v. Swapan Kumar Dakua and Anr., reported in 2000 WBLR (Cal) 290. The Division Bench of this Court held in paragraph 6 of the said judgment as follows:- "In Ganesh v. Syed Munned Ahamed (supra), wherein a claim was filed under the 1939 Act, an appeal was filed under the new Act. Full Bench of Karnataka High Court upon considering the relevant provisions of the Act as also the State rules and keeping in view the common principles of law Tort held that the claim for compensation for death or injury caused due to the composite negligence of the drivers of two or more vehicles, the person who is injured or the legal representatives of a person who is killed in such an accident, are entitled to claim entire compensation from all or any of the drivers, owners and insurers of the vehicle."
(2.) Mr. Saibalendu Bhowmick, learned Counsel appearing for the Insurance Company, however, submits that in a case under Section 163A, even though the claimant need not prove rash and negligent driving of the offending vehicle, the Insurance Company is not prevented from taking such plea. In support of such submission Mr. Bhowmick relies on the Apex Court decision in the case of National Insurance Company Ltd v. Sinitha and Ors., reported in 2011 (8) Supreme 301.
(3.) In the case of Sinitha and Ors. (Supra), the Apex Court observed that onus is shifted to prove that the offending vehicle did have any role to play in the accident. Unless the Insurance Company is successful in proving it in the negative; they cannot avoid their responsibility, particularly in a case under Section 163A of the Motor Vehicles Act, 1988.;