NEW INDIA ASSURANCE CO LTD Vs. K RAJANNA

JUDGEMENT

(1.) In this appeal the insurer has questioned the correctness of the judgment and award of the Tribunal fastening the liability to pay the compensation on the insurer.

(2.) The claimant-first respondent sustained injuries in an accident when he was travelling on the pillion of the motor cycle belonging to the second respondent and driven by the third respondent on 17.1.1982 at 11.15 p.m. The respondent Nos. 2 and 3 did not contest the claim, only the appellant insurer contested the claim. The Tribunal having found that the accident took place due to the rash or negligent driving of the motor cycle has awarded a compensation of Rs. 50,000/towards injuries, pain and suffering, Rs. 2,000/- towards expenses, Rs. 1,000/- towards future expenses, Rs. 6,732.42 towards loss of earnings during the period of treatment and Rs. 20,000/towards loss of future income, in all a sum of Rs. 81,232/-. The Tribunal has further held that as under the policy the seating capacity of the vehicle had been shown as 1+1, the policy covers the risk of even the pillion rider and has, therefore, directed the insurer to pay the compensation in the first instance.

(3.) The learned counsel for the appellant sought to contend that as the petitioner (the first respondent) had admitted in his evidence that the third respondent, who was driving the motor cycle, had purchased the vehicle, the policy has lapsed and that as such the insurer could not have been made liable. The appellant has nowhere taken up a plea that the vehicle had been transferred by the second respondent who was the insured in favour of the third respondent and that as such their policy has lapsed. Merely because in the course of the cross-examination of the petitioner it is brought out that the third respondent had purchased the vehicle, the appellant cannot seek to avoid its liability under the terms of the policy. That apart, the petitioner, who was examined in court long after the accident, has stated that he does not know when the third respondent purchased the vehicle. As such there is no clear material on record to show that the second respondent had sold the vehicle to third respondent even before the accident.