NATIONAL INSURANCE COMPANY Vs. JITENDER DABAS & ORS

JUDGEMENT

(1.) The first respondent (the claimant) was riding the pillion of motor cycle bearing registration no. DL-3S-AW 1549 (motor cycle) driven by the second respondent (the motor cycle rider cum owner) on 30.12.2006 in the area of Balraj Farm House, Pooth Khurd, Delhi at about 5:20 PM. The motor cycle came to collide against stationary bus bearing registration no. DL-1-PB-2174 (the bus) of Delhi Transport Corporation (DTC). As a result, the claimant suffered injuries which have rendered him permanently disabled. He instituted accident claim case (MACT 768/10/07) on 13.12.2007 in which the motor cycle rider, the driver of the bus, DTC and National Insurance Company Ltd. (the insurer), which had issued an insurance policy covering third party risk in respect of the bus, were impleaded. The tribunal held inquiry and, by judgment dated 09.02.2012, returned a finding that the accident had occurred due to the composite negligence of both the drivers i.e of DTC and the motor cycle. It granted compensation in the total sum of Rs.35,11,500/- and fastened the liability to pay only on the insurer of the bus, this along with Rs. 50,000/- as counsel fee to the claimant's counsel.

(2.) The appeal by the insurer of the bus is pressed only to submit that in a case of composite negligence, the driver of motor cycle also having been found responsible, the liability to pay should have been equally apportioned. Reliance is placed on the ruling of the Supreme Court of India in Kenyei Vs. New India Assurance Company Ltd, 2015 9 SCC 273 wherein the following principles were settled:-

(3.) The second respondent has been duly served. By order dated 26.02.2016, the appeal was directed to be shown in the list of "Regulars" for it to come up for hearing on its own turn. When the appeal is taken up for hearing, there is no appearance on behalf of the second respondent. The learned counsel for the insurer and for the claimant have been heard and with their assistance the record perused.