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HIGH COURT OF TRIPURA
AGARTALA
MAC APP NO.54 OF 2022
National Insurance Company Ltd.,
Represented by the Branch Manager,
Udaipur Branch, and P.S.- R.K.Pur
District-Gomati Tripura(Insurer of TR-08-4625, Hero Honda
Splendor Bike)
......... Opposite Party(No.4)-Appellant(s)
Vs.
1. Sri Shyamal Sarkar,
S/o. Late Srimanta Sarkar of- Sabroom,
Old Office Tilla, P.O. & P.S. Sabroom,
District- South Tripura
.........Claimant-Respondent(s).
2. Sri Kajal Majumder, S/o Lt. Kalyan Majumder, R.O.- Bijoynagar, P.S. Sabroom, District- South Tripura. (Driver-cum-owner of TR-08-2029, Mahindra Maximo Mini van).
3. Sri Sankar Acharjee, S/o. Sri Narayan Acharjee, R/o-Vivekananda Palli, Sabroom, South Tripura, Pin-799145, (Rider-cum-owner of TR-08-4625, Hero Honda Splender Bike).
4. The Branch Manager, Oriental Insurance Company, Dakshinapan Complex, Arjya Colony, Belonia, South Tripura, Pin-799155.(Insurer of TR-08-2029, Mahindra Maximo Mini van).
...... Opposite Party Respondent(s) For the Appellant(s) : Mrs. R. Purukayastha, Advocate. For the Respondent(s) : Mr. P. Gautam, Advocate.
Mr. R.G. Chakraborty, Advocate.
Page 2 of 7 Date of hearing and delivery of Judgment & Order : 15.11.2022.
Whether fit for reporting : NO.
HON'BLE THE CHIEF JUSTICE(ACTING) JUDGMENT AND ORDER(ORAL) This instant appeal has been filed under Section 173(1) of the Motor Vehicle Act, 1988 against the impugned award dated 01.06.2020 passed by the learned Motor Accident Claims Tribunal, South Tripura, Belonia in T.S.(MAC)04/2018 as well as the impugned order dated 03.02.2022 passed by the learned Motor Accident Claims Tribunal, South Tripura Belonia in Civil Misc. (Rev)01 of 2020.
2. The facts in brief leading to this instant appeal are that on 26.11.2016 at about 3 p.m. the claimant-respondent (here-in-after referred to as respondent No.1) along with Sankar Acharjee (respondent No.2 herein) were coming from Manughat to Sabroom with a bike bearing No. TR-08-4625 (Hero Honda Splendor Bike) and the said bike was being ridden by Sankar Acharjee(owner of the said bike). When they reached Manughat, Takiyabari on the said road one Mahindra Maxximo Minivan bearing No. TR-08-2029 which was coming from Sabroom side with rash and negligent manner dashed the motorbike, due to which the claimant and the rider of the bike, namely, Sri Sankar Acharjee sustained injuries on their person. Immediately after Page 3 of 7 the accident, the claimant was shifted to Sabroom hospital and thereafter he was referred to Dr. B.R. Ambedkar Memorial Teaching Hospital, Agartala, wherein, he was treated for fifteen days. During that period operation was done on his right leg and after that, he also took treatment at Apollo Hospital, Chennai as per advice of the attending medical officer of Dr.B.R.Ambedkar Memorial Teaching Hospital, Agartala. It is also stated that due to the injury, the claimant cannot walk properly and he has been suffering a lot. Thus, the claimant claimed a compensation of Rs. 15,76,000/- by preferring T.S. (MAC) 04 of 2018 before the learned Motor Accident Claims Tribunal South Tripura, Belonia.
3. The appellant herein who was impleaded as Opposite Party No.4, contested the suit by filing written statement. In the written statement, the appellant denied all the allegations and averments made in the petition.
4. Learned Tribunal after hearing both the parties passed an impugned award dated 01.06.2020 wherein a compensation of Rs.5,57,869/- was awarded in favour of the claimant-respondent. Respondent No.3 herein, Sri Sankar Acharjee, the owner of the bike bearing No.TR-08-4625 and respondent No.4, the Oriental Insurance Company Limited was held liable to indemnify the claimant as per a ratio of 30:70. Both the respondents have been directed to pay the compensation as awarded within 30 days from the date of the award along with Page 4 of 7 interest @ 8 % per annum from the date of presentation of the petition of claim before the Tribunal till the date of actual payment.
5. Subsequently, respondent No.3 herein (rider cum owner of TR-08-4625) has submitted one review petition registered and numbered as Civil Misc.(Rev)01/2020 before the Tribunal for accepting the original documents of the vehicle including the insurance policy of the bike numbered TR-08-4625.
6. After hearing all the parties, the learned Tribunal by order dated 03.02.2022 allowed the Review Petition and the burden of paying the 30% of the award which was given against the respondent No.3 has been shifted upon the appellant- Insurance Company to be paid within 60 days from the date of the order i.e. 03.02.2022.
7. Being aggrieved and dissatisfied with the impugned award dated 01.06.2020 and the impugned order dated 03.02.2022, the appellant herein has preferred this instant appeal.
8. Ms. R. Purukayastha, learned counsel appearing for the appellant-Insurance company argued before this Court that the question involved in this instant appeal is the question of law and it can be raised at any point. She further submitted that the claimant-respondent was the pillion rider and since the pillion Page 5 of 7 rider is not covered under the policy, therefore the appellant has no liability to compensate the claimant-respondent.
Further to support her argument, Ms. Purukayastha, learned counsel has referred to Para-25 of the Judgment of the Apex Court reported in (2008) 7 SCC 428 titled as Oriental Insurance Company Ltd. Vs. Sudhakaran K.V. and ors., dated 16.05.2008 which is reproduced herein in below:-
"25. The law which emerges from the said decisions, is: (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle."
Learned counsel appearing for the appellant also referred to the Apex Court Judgment passed in Civil Appeal No.6659 of 2008 titled as G.M. United India Insurance Vs. M. Laxmi and ors. dated 14.11.2008 to support his argument.
9. Mr. R.G. Chakraborty, learned counsel appears for respondent No.1, and Mr. P. Gautam, learned counsel appears for respondent No.4.
10. Heard both sides and perused the evidence on record.
11. It is evident from the record that the claimant respondent herein suffered physical and mental pain due to Page 6 of 7 grievous injuries as a result of the incident of the accident. He was treated in several hospitals of the State and he was also treated in Chennai. So, the award as passed by the learned Tribunal is just and proper and needs no interference. Further, the appellant-insurance company has admitted in the subsequent review petition that the said vehicle bearing No.TR-08-4625(Hero Honda Splender Bike) was insured with them and the policy was under cover. So the learned Tribunal in Civil Misc.(Rev)1 of 2020 rightly shifted the liability of paying the 30% of the award from respondent No.3 herein to the appellant-insurance company.
12. It is seen from the record that the appellant- Insurance Company has not placed any evidence in their defence before the Court below on the point of Act Policy and Comprehensive Policy. Further, no documents were exhibited and no statements have been recorded. Further, no argument has been advanced before the Court below on the above lines.
13. In view of the same, the contention of the appellant-Insurance Company before this Court that the pillion rider cannot get any benefit under the Act Policy cannot be appreciated at this stage. The appellant- Page 7 of 7 Insurance Company has not approached this Court with clean hands.
14. Further, the judgments relied upon by the learned counsel appearing for the appellant- Insurance Company are not relevant to the facts of this case
15. Thus, for the reasons indicated above, this Court is of the view that the award dated 01.06.2020 and impugned order dated 03.02.2022 passed by the learned Motor Accident Claims Tribunal, South Tripura, Belonia in T.S.(MAC)04/2018 and Civil Misc.(Rev)01/2020 respectively needs no interference since the same is just and proper.
16. With the above observation and direction, this instant appeal stands dismissed and the award dated 01.06.2020 and impugned order dated 03.02.2022 passed in T.S.(MAC)04/2018 and Civil Misc.(Rev)01/2020 respectively stands affirmed.
Send down the LCRs.
CHIEF JUSTICE(ACTING) suhanjit