Rajasthan HC Reverses Finding Of Motor Accident Tribunal; Directs Insurer Of Offending Vehicle To Reimburse Payment Made By Opposite Vehicle's Insurer

The bench thus ordered,

"Accordingly, the impugned judgment is set aside to the extent that the Tribunal has fixed the liability to pay compensation on respondent Nos.2 and 3 i.e. owner and insurer of the truck. In fact, the liability was against the owner and insurer of car during use whereof the accident took place...Accordingly, the same is set aside and it is ordered that the entire liability to pay compensation goes against the owner and insurer of the car. Since the car was insured with respondent No.12 it is liable to pay entire compensation payable to the claimants...It has been informed that the appellant (truck insurer) has already paid Rs.5,10,500/- to the claimant. Therefore, the appellant would be entitled to be reimbursed by respondent No.12."

Facts

Appellant-New India Assurance Company Ltd. was the insurer of the Truck. On 24.12.2007, the truck was dashed by a rash and negligent trolley which resulted in the death of driver Raghuvir Singh. The police with the help of JCB Crane dragged the damaged truck to the soiled portion of the road and the truck was left there under seizure of the police.

On 26.12.2007, driver Pawan Kumar along with others was driving the car, insured with Respondent No.12- Oriental Insurance Company Ltd. The FIR registered on 27.12.2007 revealed that Pawan Kumar was rash and negligent while driving the car on 26.12.2007 and dashed with the said truck from behind, resulting in death of Pawan Kumar and injury to others. After investigation, the police found that the accident was due to rash and negligent driving of Pawan Kumar. The legal representatives of victim Pawan Kumar brought Claim before MACT, Beawar.

The Tribunal found that the said accident was due to negligent parking of the truck without any flash light for guidance of other moving vehicles or any other sign showing stationed truck. In the result, the Tribunal fixed 50% liability on the truck and 50% contributory negligence on the deceased. The appellant is aggrieved by the impugned judgment dated 01.05.2012 passed in Claim Case No.78 of 2008/364 of 2011.

The court, while admitting this appeal., issued notice to Respondent No.12 only on the question whether the appellant-Assurance Company can be held liable to pay the compensation or it is the respondent No.12-Oriental Insurance Company, which should bear the liability of payment of compensation.

Findings

The court observed that there is no evidence that the truck was parked at the public place by its driver or the owner rather definite evidence is that the police crane had dragged the truck to the soiled portion of the road leaving the pitch road completely free for movement and the car had dashed going on the soiled portion of the road without any perceivable obstruction from any other vehicle. The court ruled that the accident was the result of the rash and negligent driving of the car.

The court opined that since the car was insured with respondent No.12 it is liable to pay entire compensation payable to the claimants. The court added that if there would be any violation of the terms and conditions of policy i.e. the driver of the car being without any license to drive the vehicle or without any proper license, respondent No.12 would be competent to recover from the owner of the car in a separately instituted proceeding after making payment to the claimant.

On finding that the appellant has already paid Rs.5,10,500/- to the claimant, the court observed that the appellant would be entitled to be reimbursed by respondent No.12. The court added respondent No.12 shall pay the aforesaid amount to the appellant alongwith interest paid by the appellant to the claimant on the aforesaid amount and that this exercise should be completed within three months to avoid 12% interest till recovery.

The court also opined,

"In the present case, admittedly the parking of the truck was not due to negligence of the driver or owner of the truck. The driver had already died in the accident two days ago. The damaged truck was dragged with the help of JCB crane to the side of the road on the soiled portion. These facts are not disputed. The claimant of this case unaware of the aforesaid factual position or by suppressing the aforesaid factual positions impleaded the dead driver Raguvir Singh as party to the claim petition."

Further, it was observed by the court that the truck was in the seizure of the police and no police official was impleaded as party to the claim petition. The police investigation report available on the record reveals that the accident was the result of sole negligence of the driver of the car, who was rash and negligent at the time of accident, added the court. The court found that the informant of the case is an eyewitness of the occurrence.

The court also rejected the judgments relied by the counsel for respondent no.12 and observed that In Raj Rani v. Oriental Insurance Company Ltd. [2009 (13) SCC 654], the driver of the truck had parked the truck on the mid of the road without any flash light or indicator working. In Shriram General Insurance Co. Ltd. v. Pushpa, again the driver of the lorry had parked half on the Tar road (pitch road). Likewise, in National Insurance Company Ltd. v. Mrs. Sunita Yadav [2007 (1) TAC 992 (Raj.)], the truck was parked by the driver without any reflectors, blinkers or indicators. Against the said truck a jeep with a moderate speed had collided.

The counsel for the appellants contended that the Tribunal wrongly fixed 50% negligence of the already damaged truck rather the accident was due to 100% negligence of the car driver. Moreover, the truck was under the seizure of the police, hence it could not have been held that the parking of the truck was the result of negligence of the driver or owner of the vehicle.

He further submitted that the owner of the truck Jaswant Singh was examined as NAW-2 in the claim case and he is specific that the crane brought by the police had dragged and shifted the truck to the soilly road by the side of the main pitch road. The police was not made party deliberately otherwise the entire matter would have surface before the Tribunal, he argued.

Adv. Praveen Jain appeared for the appellants, while Adv. Rishipal Agarwal and Adv. Jai Prakash Gupta appeared for the respondents.

Case Title: New India Assurance Company Ltd., through Regional Manager v. Smt. Kanchan Devi

Citation: 2022 LiveLaw (Raj) 55