N. Ananda, J.@mdashMFA No. 2205/2009 is filed by HDFC Ergo General Insurance Company (V-respondent before Tribunal) to set aside the impugned award.
MFA No. 3504/2011 is filed by claimant to fix liability on II-respondent (M/s. New India Assurance Co. Ltd.) insurer of Scooter bearing No. KA-02-E-1563.
The claim petition was filed for the death of deceased Gangaraju, son of claimants I & II and brother of claimant No. III, who died in a motor vehicle accident that took place on 25.07.2004 at about 2 p.m. due to collision between motorcycle bearing No. KA-02-EH-5355, ridden by deceased and scooter bearing No. KA-02-E-1563, which belongs to H. Narasimhamurthy Rao (I-respondent before Tribunal), insured with II respondent before Tribunal namely M/s. New India Assurance Co. Ltd. The claim petition was filed u/s 163A of the Motor Vehicles Act, 1988 (for short, ''the Act'').
2. In the judgment reported in Surender Kumar Arora and another Vs. Dr. Manoj Bisla and Others, the Supreme Court has held that when claim petition is filed u/s 163A of the Act, Tribunal should not call upon claimants to prove that accident took place due to rash and negligent driving of offending vehicle.
3. In view of judgment of the Supreme Court, reported in National Insurance Company Ltd. Vs. Sinitha and Others, the owner of scooter and also insurer of scooter had right to contest claim petition filed u/s 163A of the Act and they had right to establish that accident took place due to rash and negligence of rider of motorcycle ridden by the deceased. The Tribunal ignoring these settled principles of law and also the provisions of section 163A and 166 of the Act has dealt with claim petition as if it was filed u/s 166 of the Act. Added to this confusion, appellant-HDFC Ergo General Insurance Company Limited had not filed copy of policy before Tribunal. In the circumstances, finding recorded by Tribunal that accident took place due to rash and negligent riding of motorcycle by the deceased and appellant in MFA No. 2205/2009 namely HDFC Ergo General Insurance Company being insurer of motorcycle is liable to pay compensation cannot be sustained.
4. In view of judgment of the Supreme Court, reported in Surender Kumar Arora and another Vs. Dr. Manoj Bisla and Others, Tribunal cannot call upon claimants to prove that accident took place due to rash and negligent riding of scooter.
5. In view of judgment of the Supreme Court, reported in National Insurance Company Ltd. Vs. Sinitha and Others, the owner and insurer of scooter are at liberty to establish through cogent evidence that accident was due to rash and negligent riding of motorcycle bearing No. KA-02-EH-5355 by the deceased. After recording findings on these aspects, Tribunal has to consider liability of appellant in MFA No. 2205/2009 namely HDFC Ergo General Insurance Company, bearing in mind copy of policy made available before this court. In the result, I pass the following:-
ORDER
The appeals are accepted. The impugned award is set aside. The matter is remanded to ''Tribunal for reconsideration in the light of observations made herein and in accordance with law. Both parties are at liberty to adduce further evidence. Office shall send a copy of this judgment along with application filed by appellant in MFA No. 2205/2009 under Order 41 Rule 27 CPC, for production of copy of policy filed by HDFC Ergo General Insurance Company Limited. The Tribunal shall decide the claim petition within a period of four months from the date of receipt of a copy of this judgment. The amount deposited by appellant in MFA No. 2205/2009 shall be refunded to Insurance Company.
