NEW INDIA ASSURANCE COMPANY LTD Vs. CITY LYNGDOH

JUDGEMENT

(1.) THE judgment and award dated 10. 8. 2007 passed by the learned Member, Motor Accident Claims Tribunal, Shillong, in MAC No. 7 of 2004 has been assailed by two Insurance Companies. MAC Appeal No. 3 of 2007 has been filed by the Insurance Company of Truck No. AS-01k-5774 praying for exonerating the Insurance Company totally on the ground that the risk of the deceased was not covered under the Policy MAC Appeal No. 4 of 2007 has been filed by the Insurance Company of Truck No. AS-01m-1929 basically to reduce the ratio of the liability arising out of composite negligence of the drivers of two vehicles. For easy reference, I would refer the Insurance Companies by their truck numbers in this judgment. Since the appeals are arising out of one and the same judgment, both the appeals are being disposed of by this common judgment.

(2.) HEARD Shri V. K. Jindal, learned senior counsel for M/s New India Assurance Company Ltd. (Truck No. AS-01k-5774) and Shri A. Khan, learned counsel appearing for M/s Oriental Insurance Company Ltd. (Truck No. AS-01m-1929 ). Shri C. P. Upadhaya, learned counsel, represented the claimants. It may be mentioned here that owners and drivers of both the vehicles did not appear to contest the appeals despite being notified. It is further noted here that before the Tribunal also, except the filing of written statement by the owner of Truck No. 5774, the owners and drivers did not contest the claim applications.

(3.) BOTH the Insurance Companies also filed their written statements taking usual pleas that their liability is subject to the proof of negligence of the driver of the insured vehicles; fulfillment of the terms and conditions of the Policy, etc. The Insurance Company of Truck No. 5774 also examined their Assistant Manager as OPW 1 whereby the Insurance Company raised a defence that the deceased was a gratuitous passenger and, as such, it had no liability to pay any amount of compensation. The said Insurance Company also filed a petition sometime in the month of March 2007 for summoning the driver as a witness. However, this petition was rejected on 4. 4. 2007 on the ground that the prayer was made at a belated stage and more so, on the ground that the Insurance Company did not take a specific plea that the vehicle was being driven on the basis of a fake driving license. However, the Insurance Company of Truck No. 1929 did not adduce any evidence either to disown its liability or to establish that the negligence of its driver was less in comparison to the negligence of the other driver.