NEW INDIA ASSURANCE Vs. KAVITA DILIP RAUT

JUDGEMENT

(1.) The appellant-Insurance Company i.e. the original respondent No.2 in Motor Accident Claim Petition No.135 of 2008 has challenged the judgment and award dtd. 23/9/2009 passed in the aforesaid claim petition by the Member Motor Accident Claims Tribunal, Wardha (herein after referred to as "the learned Tribunal"). Under the impugned judgment, the learned Tribunal has granted compensation of Rs.3,00,000.00 to the present respondent Nos.1 to 5, who are the original claimants, to be paid by the appellant/Insurance Company as well as the present respondent Nos.6 and 7, who are the owners of the vehicles involved in the accident, under the joint and several liability. During the pendency of the appeal, the respondent Nos.4 and 5/claimants died and hence, deleted.

(2.) The respondents/claimants had in fact filed aforesaid claim petition on account of accidental death of one Dilip Raut, who was proceeding from Seloo to Kotamba on motorcycle along with pillion rider one Sandesh Thakre. One Matador, bearing Registration No.MH31/M-4712 was parked negligently in the middle of the road without any blinkers and head lights or tail lights. The deceased due to such negligence on the part of the driver of the said matador owned by the present respondent No.7, dashed to it and died on receiving fatal injuries. The learned Tribunal, by considering the evidence on record and pleadings of the rival parties, held that the driver of the respondent No.7 i.e. the owner of the Matador was at fault due to parking the Matador in the middle of the road without any precaution and therefore, held the present appellant/Insurance Company and respondent Nos.6 and 7 for paying compensation to the claimants jointly and severally as mentioned above. Hence, this appeal.

(3.) The learned counsel for the appellant- Insurance Company vehemently argued that the respondents/claimants had in fact filed the claim petition under Sec. 163-A of the Motor Vehicles Act, 1988 (in short "the MV Act") for avoiding fault of the deceased himself. According to him, the deceased had borrowed the motor cycle involved in the accident from the respondent No.6/owner and then drove it negligently and caused the accident. He pointed out that when the deceased had stepped into the shoes of the owner of the said motor cycle and died due to his own fault, the respondents/claimants are not entitled to receive any compensation from the Insurance Company of the said motor cycle. For that purpose, he relied on the judgment in the case of Ramkhiladi and another v. United India Insurance Company and another, reported in (2020) 2 SCC 550. : (AIR 2020 SC 527).