New India Assurance Co. Ltd. vs Dilip Kumar and Others

Ashok Kumar Tiwari, J.—This appeal has been filed by the appellant/Insurance Company u/s 173 of Motor Vehicles Act, 1988, against the award passed by the learned 2nd Additional Member, Motor Accident Claims Tribunal, Khargone, West Nimar (M.P.) in Claim Case No. 32/93 on 31-8-1999.

The claimant/respondent No. 1 was working with State Bank of Indore as auditor at its Head Office at Indore,on the date of accident. On 19-10-92, when he was going with his colleague Sudheer Reghe as pillion rider on a scooter bearing registration No. MP-09/F-9637 respondent No. 2 Gulam Ali drove motorcycle bearing registration No. MKN-4830 rashly and negligently, which dashed against the scooter and respondent No. 1 sustained injuries, due to the accident. Respondent No. 1 Dilip Kumar preferred Claim Case No. 32/93 against the respondent Nos. 2, 3 and the appellant. Sudheer Reghe, who also sustained injuries in the accident preferred Claim Case No. 31/93 against the respondent Nos. 2, 3 and the appellant, alleging negligence on the part of the respondent No. 2. Respondent No. 2, who also suffered injuries in the same accident, preferred a Claim Case No. 26/94 against the respondent Nos. 1, 3 and the appellant. The learned Tribunal, vide common award dated 31-8-99 decided all the aforesaid three claim cases and passed an award of Rs. 50,000/- in favour of the respondent No. 1 against the respondent Nos. 2, 3 and the appellant. Hence, the appellant/Insurance Company has preferred this appeal u/s 173 of the Motor Vehicles Act, 1988, challenging its liability.

It has been contended by the learned Counsel for the appellant that in a claim case filed before the Motor Accident Claims Tribunal the third party alone is entitled to get the compensation and the claimant/respondent No. 1 was not a third party, therefore, he was not entitled to get any compensation, hence, the impugned award deserves to be quashed. This contention of the learned Counsel can not be accepted. The claimant was riding on the scooter bearing registration No. MP-09/9637 and allegedly accident was the result of the collision with the motorcycle bearing registration No. MKN-4830. The claim was filed alleging the negligence on the part of the driver of the motorcycle, therefore, in relation to the motorcycle the position of the respondent No. 1 was that of third party. The drivers of the scooter and motorcycle have been found to be equally negligent, and therefore, the respondent No. 1 can not be categorized as the first or second party. The position of respondent No. 1 in relation to the vehicle/motorcycle causing the accident is that of third party. Hence, he is entitled to get compensation from the owner, driver and the Insurance Company of the motorcycle having registration No. MKN-4830.

The learned Counsel for the appellant has submitted that the respondent No. 1 landed the scooter from his brother Arun Kumar/respondent No. 3, who was the owner of the scooter, hence, his position is that of the owner of the scooter and, as such, he does not fall under the category of third party. This contention of the learned Counsel has no force. As already discussed above, the claim was preferred alleging the negligence on the part of the driver of the motorcycle, therefore, even the owner of the scooter will be treated as third party in relation to the owner and driver of the offending vehicle, i.e., motorcycle, the driver of the motorcycle has been held negligent to the extent of 50%. Hence, the respondent No. 1 can not be deprived from getting the compensation, which has been awarded on the basis of 50% composite negligence of the driver of the motorcycle. Thus, there is no merit in this appeal and no interference in the impugned award is called for.

Consequently, the appeal is dismissed as devoid of any merit. The appellant shall bear its own cost and the cost of respondent No. 1 as well, throughout. Counsel fee Rs. 1,000/-, if certified.