Tripura High Court
Opposite Party(No.4) vs Sri Shyamal Sarkar on 15 November, 2022
Page 1 of 7
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.
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
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
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
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
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-
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
