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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:14th March, 2014
+ MAC.APP. No.938/2012
NATIONAL INSURANCE CO. LTD. ..... Appellant
Represented by: Mr.L.K.Tyagi, Advocate.
Versus
AMIT KUMAR & ORS. ..... Respondents
Represented by: Mr.Manish Maini, Advocate for
Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal is preferred against the impugned award dated 30.04.2012, whereby the learned Tribunal has granted compensation as under:-
"Pecuniary damages (Special damages):
a)Medical expenses-----------------------------------------Rs. 1,094/-
b)Loss of income for 4 months---------------------------Rs. 15,856/-
c)Special diet expenses------------------------------------Rs. 7,000/-
d)Conveyance charges------------------------------------Rs. 5,000/-
e)Attendant charges---------------------------------------Rs. 2,000/- Non-pecuniary damages (General damages)
f)Pain, suffering, mental shock and trauma---------Rs. 40,000/-
__________________ Total Rs.70,950/-
MAC.APP. 938/2012 Page 1 of 5
Interest at the rate of 9% per annum from the date of filing of the petition till realization of the amount was also awarded by the learned Tribunal.
2. It is important to note that despite service upon respondent Nos. 2 and 3,i.e., driver and owner of the offending vehicle, appeared none on their behalf.
3. Learned counsel appearing on behalf of the appellant/Insurance Company submits that the appellant had issued notice under Order XII Rule 8 CPC to the respondent Nos. 2 and 3 through A.D. Card Ex.REW1/4 to produce the driving licence of respondent No.2 and insurance policy of the offending vehicle.
4. R3W1 in his evidence deposed that the driver of the offending vehicle was challaned under Sections 3/181 of the Motor Vehicles Act, 1988 (for short 'MV Act') for not holding the driving licence and owner of the offending vehicle was also challaned under Section 5/180 &186 of MV Act.
5. Learned counsel further submits that respondent No.2, driver of the offending vehicle did not file any written statement despite opportunity, MAC.APP. 938/2012 Page 2 of 5 hence his right of filing written statement was closed by the learned Tribunal vide its order dated 17.01.2011.
6. Learned counsel submits that the learned Tribunal has misread and misinterpreted the decisions of this Court in the case of Oriental Insurance Co. Ltd. Vs. Sonia reported in 2009 (3) TAC 166 (Del.), wherein this Court held that the Insurance Company was failed to discharge the onus. However, in the case in hand, respondent Nos. 2 and 3, i.e., driver and owner of the offending vehicle were challaned for not holding valid driving licence and for allowing the vehicle to be driven by a person who was not holding any driving licence. Moreover, notice under Order XII Rule 8 CPC was issued despite the driving licence was not filed on record.
7. In such an eventuality, the learned Tribunal ought to have granted the recovery rights in favour of the appellant and against the respondent Nos. 2 and 3.
8. Learned counsel further submits that while awarding the compensation, the learned Tribunal has also awarded a sum of Rs.7,000/- towards lawyer charges contrary to the dictum of this Court in ICICI Lombard General Insurance Co. Ltd. Vs. Kanti Devi & Ors., MAC.A. 645/2012 decided on 30.07.2012.
MAC.APP. 938/2012 Page 3 of 5
9. It is not in dispute that the driver and owner of the offending vehicle were challaned under Sections 3/181 and 5/180 & 186 of MV Act respectively. Moreover, there is no driving licence on record, therefore, the inference is drawn that the driver of the offending vehicle was not holding driving licence on the date of the accident and the owner of the offending vehicle allowed the driver, to drive the vehicle, who was not holding valid driving licence on the date of accident.
10. In view of the above, I am of the considered opinion that the learned Tribunal has erred in not granting recovery rights in favour of the appellant.
11. As regards the issue of lawyers fee is concerned, the same has been dealt with by this Court in the case of Kanti Devi & Ors. (supra), wherein it is held that the Tribunal has no power to grant lawyer's fee and out of pocket expenses. To that extent, the impugned award dated 30.04.2012 is set side.
12. In view of the above, the appellant/Insurance Company is at liberty to recover the amount from respondent Nos. 2 and 3, i.e., driver and owner of the offending vehicle.
13. Consequently, statutory amount shall be released in favour of the appellant.
MAC.APP. 938/2012 Page 4 of 5
14. The compensation amount is just Rs.70,950/- with interest at the rate of 9% per annum, which was directed to be kept in the FDR in the name of respondent No.1 with State Bank of India, Rohini District Courts, Delhi, to be renewed periodically with liberty to withdraw the quarterly interest accrued thereon.
15. Since the amount is meagre and no time period of the FDR was mentioned, therefore, I direct the Branch Manager, UCO Bank, High Court of Delhi, New Delhi, to release the amount with proportionate interest in favour of the respondent No.1 on taking necessary steps by him.
16. The appeal is allowed on above terms.
SURESH KAIT, J.
MARCH 14, 2014 sb MAC.APP. 938/2012 Page 5 of 5