ORIENTAL INSURANCE COMPANY LTD Vs. S.A. GAFER

JUDGEMENT

(1.) THIS case raises an interesting question of law. The admitted facts are that on September 6,1979 the claimant S.A. Gafer was proceeding on a moped bearing No. APC 6689 at about 9.00 a.m. When he was near Government Arts & Science College, one G. Prabhaker Naidu, the first respondent before the Tribunal below, riding the motor cycle bearing No. APC 1117 rashly and negligently coming from the opposite direction, dashed against the claimant. As a result, he sustained grievous injuries. Under Section 110 -A of the Motor Vehicles Act (Act IV of 1939) a petition was laid before the Tribunal below against Prabhaker Naidu, Rajendra Naidu, the owner of the motor cycle bearing No. APC 1117 and the insurance company, the appellant herein. The claimant was examined as PW1 and two eye - witnesses were also examined. On a consideration of the evidence on record, it was found that Prabhaker Naidu had driven the motor vehicle rashly and negligently. The evidence of PW1, claimant, corroborates the evidence of the doctor, PW 4. The court below granted a sum of Rs. 35,000/ - to the claimant with interest at 9 per cent as against the claim of Rs. 95,000/ - against Prabhaker Naidu and the appellant insurance company. It dismissed the O.P. against the owner of the vehicle. Against the dismissal of the O.P. a& against the owner of the vehicle, the claimant filed cross -objections and the insurance company filed the present appeal as against the amount of compensation awarded. Thus the appeal and cross -objections are disposed of by a common judgment.

(2.) MR . Srinivasa Rao, the learned Counsel for the insurance company, contended that as per Section 95 of the Act the appellant as insurer had undertaken to indemnify the damage that may be suffered by the insured, viz., the owner. The Tribunal having dismissed the O.P. against the owner and the liability of the insurance company being coextensive with that of the owner, the appellant also should have been absolved of the liability.

(3.) THE question, therefore, is whether the liability cast upon the insurance company is valid in law. From the aforesaid narration of events, the following indisputable facts emerge - - Rajendra Naidu is the owner of the motor vehicle who registered it with the appellant company under the contract, Exh. B -l, the contract was subsisting as on the date of the accident. Prabhaker Naidu had driven the vehicle at the time of the accident and he had in his possession the key of the ignition.