- (1.) The appeal is by the insurer on a plea of exclusion of liability cast for death of a pillion rider in a motorcycle. A twowheeler in which the deceased was travelling was admittedly under a package policy that covered the risk to the pillion rider as well.
(2.) The argument of the learned counsel for the insurer is that the vehicle in which the deceased was travelling was hit from behind by an unknown vehicle and the driver of the motorcycle had originally given a complaint which was lodged as FIR that he was going on the left side of the road and an unknown vehicle had dashed against him that resulted in his falling from the vehicle to the kutcha portion of the road, while the deceased fell on the concrete portion of the road and obtained fatal injuries. At the time of trial, according to the counsel, the claimants were trying to improve the version by bringing an evidence of one Raj Kumar whose name was not found anywhere mentioned in the FIR as having followed the motorcycle in which the deceased was driving and through him the evidence was given that the motorcyclist was going at high speed and an unknown vehicle had dashed against, it as if to suggest the negligence as purely of the motorcyclist in driving the motorcycle at a high speed.
(3.) According to the appellant, the petition had been filed under Section 166 of the Motor Vehicles Act and, therefore, there was a compulsion for the pillion to prove to the negligence of the insured's vehicle and if statement of Raj Kumar were to be discarded as unworthy as a got up witness, the statement given by Satpal, the driver of the mother, and recorded in FIR alone would obtain credence. He would argue that the driver of the motorcycle was sought to be brought as a witness by summons on payment of diet money but he was not prepared to take the witness stand. The claimants themselves did not take the courage to bring him as a witness to explain the statement in the FIR. This, according to him, would prove that there was no negligence on the part of the driver of the motorcycle and the insurer could have been made liable only for no fault liability under Section 140 of the Motor Vehicles Act. The counsel would place reliance of a judgment of the Supreme Court in A. Sridhar Versus United India Insurance Company Limited, 2001 4 PLR 804 that dealt with a case of an accident due to oil spill on the road and when the court found that the accident did not occur on account of the negligence, the Supreme Court had observed that the High Court was justified in directing compensation to be paid under Section 140 only.;