ORIENTAL INSURANCE CO .LTD. Vs. DINESH KUMAR

JUDGEMENT

(1.) This appeal is filed against the Judgment and Decree in MCOP No.1306 of 2013 dtd. 5/7/2017 on the file of the Motor Accident Claims Tribunal, Ist Additional District Court, Tiruppur.

(2.) The case of the appellant is that the claimant/1st respondent herein filed a claim petition in MCOP No.1306 of 2013 before the Motor Accident Claims Tribunal (hereinafter referred to as "the Tribunal"), Tirupur for his injuries sustained in the accident which occurred on 2/9/2013 at 8.10 pm, when he was driving the two wheeler bearing Registration No.TN-39-AR3721 from Tirupur to Dharapuram Road, near to Pudhur Pirivu Bus Stop, the three wheeler (mini Door) bearing Registration No.TN-39-X-3634 driven by its driver in rash and negligent manner hit against the two wheeler as a result of which the Corporation Town Bus bearing Registration No.TN38-N-1072 coming back side of the two wheeler driven by the petitioner/1st respondent herein crushed the left leg ankle and caused injuries to the petitioner/1st respondent herein. As the said accident took place due to rash and negligent act of the 1st respondent/2nd respondent herein who was driving the three wheeler and 4th respondents who was driving the Corporation Bus, the petitioner/1st respondent herein filed the M.C.O.P. No.1306 of 2013 on the file of the Motor Accident Claims Tribunal/Ist Additional District Court, Tiruppur claiming a compensation of Rs.20,00,000.00 (Rupees Twenty Lakh Only) on various heads. In the counter, the Insurance company/3rd respondent denied its liability stating that FIR has been filed against the TNSTC bus driver also as he drove the bus in a rash and negligent manner and ran over on the leg of the petitioner/1st respondent herein. Further, on the side of the 5th respondent/Transport Corporation, it was submitted that at the time of the accident, the driver of the two wheeler and the minidor did not have valid driving licence. The Tribunal after perusing the oral and documentary evidence and hearing both side submissions, fixed the compensation of Rs.13,74,000.00 payable to the claimant/petitioner by fastening liability on the side of the 2nd respondent who is owner of the minidor and the Insurance company/appellant herein and directed the Insurance company to pay the aforesaid compensation on the basis of pay and recovery. Being aggrieved by the aforesaid order against fastening entire liability on the Insurance company and leaving the Transport Corporation from fixing the liability, the Insurance Company has filed the present Civil Miscellaneous Appeal to set aside the same.

(3.) The learned counsel for the appellant would submit that the Tribunal has grossly erred in fastening entire liability on the appellant insurer, when the Corporation Bus belonging to the 5th respondent ran over the victim/1st respondent herein and the FIR was registered against the drivers of both the vehicle ie. Bus and Minidor. The Tribunal ought to have fastened the liability at 50% on the driver of Minidor and at 50% on the driver of the Transport Corporation. While being so, the Tribunal has fastened entire liability on the Insurance Company/appellant herein. In his support, the learned counsel for the appellant has relied upon the Judgment in the case of "National Insurance Co. Ltd. Vs. P.A. Vergis and Others" passed by the High Court of Rajasthan reported in 1990 SCC OnLine Raj 630: (1991) 1 TAC 382 wherein it has been observed as follows: