R - 16
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 407/2006
Date of Decision: 02nd July, 2009
%
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through : Mr. S.L. Gupta, Adv.
versus
SHIELA AVINASHI & ORS. ..... Respondents
Through : Mr. Navneet Goyal, Adv.
for R-1.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may Yes
be allowed to see the Judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
JUDGMENT (Oral)
1. The accident dated 20th February, 1997 resulted in grievous injuries to the claimant/respondent No.1 who filed the claim petition before the learned Tribunal.
2. The learned Tribunal passed an award for Rs.1,61,000/- in favour of the claimant and against the appellant.
3. The appellant has urged the following grounds at the time of hearing of this appeal:-
(i) The claimant has received a sum of Rs.86,000/-
from New India Insurance Company Limited under a mediclaim insurance policy and, therefore, the said MAC .APP.No.407/2006 Page 1 of 4 amount should be deducted from the award passed by the learned Tribunal.
(ii) The driver of the offending vehicle was not holding a valid driving licence at the time of the accident and, therefore, the appellant is not liable to pay any compensation to the claimant.
4. The learned counsel for the claimant submits that the appellant has not taken over the defence under Section 170 of the Motor Vehicles Act before the learned Tribunal and, therefore, the appellant cannot challenge the quantum of compensation awarded by the learned Tribunal. Reference in this regard be made to the judgments by the Apex Court in the cases of National Insurance Co. Ltd. vs. Nicolletta Rohtagi, (2002) 7 SCC 456 and Shankarayya vs. United India Insurance Co. Ltd., (1998) 3 SCC 140 where it has been held that in the absence of defence as envisaged under Section 170 of the Motor Vehicles Act being taken over by the insurance company, the appeal filed by the insurance company is not maintainable. Following the aforesaid judgments, it is held that the appellant cannot challenge the quantum of compensation awarded by the learned Tribunal.
5. Without prejudice to the aforesaid objection, learned counsel for the claimant submits that the amount received by the claimant under a mediclaim policy cannot be deducted from the compensation payable under the Motor Vehicles Act. The learned counsel for the claimant refers to and relies upon MAC .APP.No.407/2006 Page 2 of 4 the judgments in the case of Madhya Pradesh State Road Transport Corporation vs. Priyank, 2000 ACJ 701 and Vrajesh Navnitlal Desai vs. K. Bagyam, 2006 ACJ 65 in support of the above preposition. The learned counsel for the claimant also refers to and relies upon the Full Bench judgment of the Madhya Pradesh High Court in the case of Kashiram Mathur vs. Rajendra Singh, 1983 ACJ 152 and two judgments of this Court in the cases of Dr. A.C. Mehra vs. Behari Lal, 1998 ACJ 379 and Oriental Insurance Company vs. K.P. Kapur, I (1997) ACC 138.
6. Notwithstanding the bar of Section 170 of the Motor Vehicles Act, the appellant has no case on merits. Following the aforesaid judgments, the appellant's contention is rejected as a tort-feasor cannot take advantage of the claimant's contract with a third party in an action of injury caused by negligence and the amount received by the claimant on an accidental mediclaim insurance policy cannot be taken into account in reduction of damages because the claimant does not receive that amount because of the accident but because he had entered into a contract providing for the contingency.
7. With respect to the second ground of challenge that the driver of the offending vehicle was not holding a valid driving licence at the time of the accident, it is noted that the driver was holding a driving licence No.32893/A2/95 - Ex.RW2/5. The appellant summoned the official from the Transport Authority who deposed with respect to a different licence number and admitted that there are number of authorities in Chennai. MAC .APP.No.407/2006 Page 3 of 4
8. The driving licence Ex-PW2/5 was not proved by the appellant to be fake and, therefore, the learned Tribunal held that the appellant failed to prove that the driver of the offending vehicle was holding a fake driving licence. There is no infirmity in the view taken by the learned Tribunal.
9. For all the aforesaid reasons, the appeal is dismissed.
10. All the pending applications also stand disposed of.
11. No costs.
J.R. MIDHA, J JULY 02, 2009 mk MAC .APP.No.407/2006 Page 4 of 4