HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
M.A.C.M.A.NO.1316 OF 2007
JUDGMENT:
The 2nd respondent-New
India Assurance Company Limited of Hero Honda Splendor two wheeler bearing
No.AP5 AA 3516 of the claim petition 1st respondent of the claim petition
MVOP No.1243 of 2003 on the file of the VIII Additional District Judge, East Godavari, filed under
Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’) by
husband and two minor children and parents of the deceased Badireddy Saraswathi
for Rs.2,00,000/- since awarded by the Tribunal as prayed for with interest at
7.5%p.a. with joint liability against the owner and Insurer(both the
respondents of the claim petition) negating to exonerate the insurer, preferred
the appeal with the contentions in the grounds of appeal as well as submissions
during course of hearing that the award of the Tribunal is contrary to law,
weight of evidence, probabilities of the case and erroneous outcome as if there
is a discrepancy between the Insurance policy covering risk as an Act policy
from Exs.B.1 and B.2 (policies) though not, and in ignorance of the settled
expressions of the apex Court for no additional premium paid covering risk of
pillion rider, hence to set aside the said award and exonerate the Insurer.
2.
The 1st respondent-owner of the vehicle in the claim petition though
contested before the Tribunal did not choose to appear herein.
3.
It is the contention of the claimants through their counsel that the award of
the Tribunal is just and for this Court while sitting in appeal against fixing
of joint liability, there is nothing to interfere but for dismissal of the
appeal. Perused the material on record. The parties hereinafter are referred to
as arrayed before the Tribunal for the sake of convenience in the appeal.
4).Now the points that arise for
consideration in the appeal are:
1.
Whether
the award of the Tribunal fixing joint liability is unsustainable and requires interference
by this Court while sitting in appeal against the award and if so with what extent
and what observations?
2.
To what result?
POINT-1:
5.
The fact that the accident was the result of the rash and negligent driving of
the driver of the crime vehicle in which pillion rider met with death that
belongs to 1st respondent-insured with the 2nd respondent-Insurer
covered by Ex.B.1=B.2 not in dispute for the purpose of appeal but for the
Insurer to be exonerated in saying the policy not covered the risk or to uphold
the joint liability fixed by the Tribunal.
6.
On perusal of Ex.B.1=B.2 what the Tribunal found at para-4 at page-3 as there
is some discrepancy with regard to the schedule in the policy is not correct as
amount collected is for basic policy+PA to the rider–cum-owner of Rs.50/-,
loading charges of Rs.4/- and service tax of Rs.15/- total Rs.225/- and in the
said amount Rs.160+Rs.50/- concerned, it is basic policy with additional
coverage only for owner-cum-rider and not for risk of pillion rider. Once that is the basic policy and no
additional premium paid and it is not even a standard policy to say covered by
IRDA regulations, dated 16.11.09, as held by the apex Court in National
Insurance Company Limited Vs. Tilaksingh[1]
there is nothing to fasten liability on the Insurer to cover the risk, for
policy not covered risk, thereby tribunal went wrong in fixing the joint
liability not exonerating the Insurer. Accordingly, Point No.1 is answered.
7. In the result, the appeal is allowed by exonerating
the Insurer from liability by fixing the liability only against the owner of
the crime vehicle-1st respondent in favour of the claimants. Rest of
the award holds good. The 2nd respondent-Insurer is at liberty to
move tribunal for withdrawal of the amount he already deposited and to recover
for what all paid, if any, through due process.
________________________
Dr. B.SIVA
SANKARA RĀO, J
Date:25-02-2014
B/o
Vvr
