- (1.) A very short and limited question arises for consideration in this appeal.
(2.) THREE persons were moving on a two-wheeler scooter bearing Registration No. BHV 7079 on 24.12.1981. A maxi-taxi bearing Registration No. BHM 799 collided with the scooter dragging it along for about 40'/50' and, ultimately, dashed against an electric poll. All the three occupants of the scooter died. The scooter was insured with the appellant/Oriental Fire and General Insurance Co. Ltd. and the maxi-taxi was insured with Respondent No. 3/New India Insurance Co. Ltd. Even though, the Motor/Accidents, Claims Tribunal appears to have held that the driver of the scooter was guilty of contributory negligence in causing the accident, in appeal the learned Single Judge set-aside that finding of the Tribunal and in so many words held that even though the driver of the scooter was not wearing protective helmet, he was not and could not be held guilty of any contributory negligence in causing the accident. According to the learned Single Judge not wearing a protective helmet might be an infraction of Section 85-A of the Act, but that by itself could not be termed as, in any way, being responsible for causing the accident, nor can that be a ground to show that the driver of the scooter could be held guilty of rashness or negligence in causing the accident. No appeal has been filed against that judgment of the learned Single Judge with regard to the aforesaid finding.
(3.) CURIOUSLY enough totally exonerating the driver of the scooter for any act of negligence or rashness in causing the accident, the learned Single Judge went on to fasten the Oriental Fire and General Insurance Co., the appellant herein, the insurer of the scooter, with the liability of paying Rs. 25,000/- (twentyfive thousand) with interest. That was totally unjustified. Undoubtedly, the insurer is liable to indemnify the owner or the driver of a vehicle with respect to the award passed against the owner, but only when the driver or the owner is held responsible in causing the accident due to rash or negligent driving of the vehicle. The learned Single Judge having absolved the driver of any rashness or negligence in causing the accident, it was not open to him to fasten the aforesaid liability upon the insurer of the vehicle.;