Case Note & Summary
The present appeal was filed by Oriental Insurance Co. Ltd., the insurer of the truck involved in the accident, challenging the judgment and award of the Motor Accident Claims Tribunal, Aurangabad, in M.A.C.P. No.698/2006 dated 09.08.2010. The original claimants, Sk. Ahmed and Haseena, parents of deceased Shaikh Nisar, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the death of their son in a road accident that occurred on 15.02.1997. The deceased was travelling in a tempo matador when a truck coming from the opposite direction, driven rashly and negligently, dashed against the tempo, causing fatal injuries. The claimants initially impleaded the truck owner, driver, and insurer (Oriental Insurance Co. Ltd.) as respondents. Later, by amendment, they added the tempo driver, owner, and insurer (New India Assurance Co. Ltd.) as respondents. The Tribunal partly decreed the claim, awarding Rs. 2,25,000 with interest at 7.5% per annum from the date of petition, and held both insurers jointly and severally liable, with a right of recovery in favor of Oriental Insurance Co. Ltd. against the truck owner for breach of policy conditions (driver not holding valid licence). The appellant, Oriental Insurance Co. Ltd., challenged the award primarily on the ground that the Tribunal erred in holding it liable despite the breach of policy conditions. The respondents, including the claimants and New India Assurance Co. Ltd., supported the award. The High Court, after considering the evidence and arguments, held that the Tribunal correctly applied the 'pay and recover' principle, but modified the apportionment of liability between the two insurers. The court found that the truck driver was more negligent, and therefore apportioned liability at 75% on Oriental Insurance Co. Ltd. (truck insurer) and 25% on New India Assurance Co. Ltd. (tempo insurer). The court also upheld the quantum of compensation and the rate of interest. The appeal was partly allowed, modifying the award to reflect the apportionment, and the civil application was disposed of.
Headnote
A) Motor Accident Claims - Compensation to Parents - Section 166 Motor Vehicles Act, 1988 - Claimants, parents of deceased, sought compensation for death in road accident - Tribunal awarded Rs. 2,25,000 with interest - High Court upheld award but modified liability apportionment - Held that claimants are entitled to compensation, but liability of insurers to be determined based on negligence (Paras 1-10). B) Insurance Law - Breach of Policy Conditions - Section 149 Motor Vehicles Act, 1988 - Appellant insurance company contended that truck driver did not have valid driving licence - Tribunal held appellant liable to pay and recover - High Court upheld pay and recover direction - Held that insurer can be directed to pay compensation and then recover from owner if there is breach of policy conditions (Paras 11-15). C) Motor Accident Claims - Contributory Negligence - Apportionment of Liability - Both drivers of truck and tempo were negligent - Tribunal apportioned liability 50:50 between insurers of truck and tempo - High Court modified to 75:25 in favor of truck insurer - Held that based on evidence, truck driver was more negligent, hence 75% liability on truck insurer and 25% on tempo insurer (Paras 16-20).
Issue of Consideration
Whether the Tribunal erred in holding the appellant insurance company liable to pay compensation despite alleged breach of policy conditions, and whether the liability should be apportioned between the two insurers.
Final Decision
The appeal is partly allowed. The judgment and award of the Motor Accident Claims Tribunal is modified to the extent that the liability is apportioned as 75% on Oriental Insurance Co. Ltd. (appellant) and 25% on New India Assurance Co. Ltd. (respondent No.7). The appellant is directed to pay the entire compensation to the claimants and then recover 25% from respondent No.7. The appellant's right to recover the amount from the truck owner (respondent No.3) for breach of policy conditions is upheld. The civil application is disposed of.
Law Points
- Motor Vehicles Act
- 1988
- Section 166
- Section 147
- Section 149
- contributory negligence
- apportionment of liability
- breach of policy conditions
- pay and recover
