NEERAJ Vs. UNITED INDIA INSURANCE COMPANY LTD.

JUDGEMENT

(1.) Instant appeal has been submitted by the appellants-claimants against the impugned judgment and award dtd. 26/6/2008 passed by the Court of Special judge, Dacoity Affected Area cum Motor Accident Claims Tribunal in MAC case No. 93/2006, whereby the Tribunal after framing the issues, evaluating the evidence on the record and hearing counsel for the parties rejected the claim petition of the claimants appellants.

(2.) Learned counsel for the appellants claimants submitted that respondent No. 2 filed a complaint with Police Station Diholi on 18/2/2006 stating therein that on 13/2/2006, he along with his niece were going on a motor cycle bearing No. RJ-11-1M-5034. When they reached near Diholi petrol pump, a group of blue buck came in front of them and in order to stop the motorcycle when brake was applied, his nephew fell down on the road and he sustained injuries and, thereafter he was taken to hospital and he remained admitted there till 18/2/2006 and ultimately on 19/2/2006, he succumbed to the injuries sustained and thereafter the claim petition was filed for getting compensation. Counsel further submitted that the claim petition of the appellants has been rejected on the ground that no report with regard to negligence of the driver of the vehicle was lodged. Hence, the Tribunal came to the conclusion that the incident has not occurred due to negligence of driver of the motorcycle. Counsel further submitted that while deciding issue No. 3, the Tribunal has recorded a finding that the deceased was sitting on the motorcycle as a pillion rider and no premium was taken and by recording this finding also the issue was decided in favour of the insurance company. Counsel for the appellants has placed reliance on the judgment delivered by the Hon'ble Apex Court in the case of S. Kaushnuma Begum and Others v. The New India Assurance Co. Ltd. and Others, reported in AIR 2001 SC 485 and stated that in the facts of said case, the jurisdiction of the Tribunal was not restricted to decide the claims arising out of negligence in the use of motor vehicles. In the aforesaid judgment, the Hon'ble Apex Court held that the negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. Counsel further submitted that in the aforesaid judgment due to burst of tyre of the jeep, the injured sustained injuries and adequate compensation was granted to him. Counsel further submitted that bare perusal of the insurance policy (Ex. NA1) clearly indicates that it was a package policy which covers the liability of the Insurance Company even for the pillion rider. Lastly, counsel for the appellants submitted that under the above facts and circumstances of the case, the matter requires reconsideration, so the matter may be remitted back to the Tribunal for deciding the whole matter afresh.

(3.) Per contra, learned counsel for the respondent-Insurance Company submitted that the factum of accident was not proved and the case of the claimants does not fall within the parameters of Sec. 166 of the Motor Vehicles Act, 1988. Therefore, the Tribunal was justified in rejecting the claim petition vide judgment dtd. 26/6/2008. Learned counsel for the Insurance Company further submitted that the negligence of respondent No. 2 was not proved and no FIR in this regard was lodged. Hence, no illegality has been committed by the Tribunal while passing the impugned judgment. Learned counsel for the Insurance Company has placed reliance on the judgment passed by the Hon'ble Apex Court in the case of Surender Kumar Arora and Anr. v. Dr. Manoj Bisla and Ors., reported in 2012 (3) TAC 353 (SC).