Delhi High Court
The National Insurance Co. Ltd vs Shankar Dass & Ors on 21 April, 2009
Author: J.R. Midha
36
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.420/1998
Date of Decision: 21st April, 2009
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THE NATIONAL INSURANCE CO. LTD ..... Appellant
Through : Mr. Pankaj Seth, Adv.
versus
SHANKAR DASS & ORS ..... Respondents
Through : Mr. Ashok Popli, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
JUDGMENT (Oral)
1. The appellant is the insurer of the offending vehicle.
The appellant was proceeded ex-parte before the learned
Tribunal and an ex-parte award was passed.
2. The appellant filed an application for setting aside of
the ex-parte award which was dismissed by the learned
Tribunal and is under challenge in this appeal.
3. The accident dated 27th February, 1991 resulted in the
death of a young boy aged 23 years earning his livelihood
from the work of builder of bodies of motor vehicles. The
deceased was survived by his parents who filed the claim
petition before the learned Tribunal. The deceased was
earning Rs.2,200/- per month. However, the learned Tribunal
did not accept the evidence and took the minimum wages to
compute the compensation.
4. The learned Tribunal deducted 50% towards personal
expenses and applied the multiplier of 9 to compute the
compensation at Rs.69,228/-. Rs.2,000/- was awarded
towards funeral expenses, Rs.2,500/- was awarded for loss of
estate and Rs.5,000/- was awarded towards loss of love and
affection. The total compensation comes to Rs.78,728/-,
rounded off to Rs.79,000/-.
5. The amount awarded by the learned Tribunal is grossly
inadequate. The learned Tribunal has not followed the spirit
of Section 168 of the Motor Vehicles Act which provides that
the Tribunal shall conduct an inquiry upon receipt of the
complaint. Onus has been casted on the learned Tribunal to
ascertain the facts and compute the compensation. In the
present case, the claimants are the poor persons unable to
prosecute their case properly. Nothing prevented the
learned Tribunal to summon the employer to find the income
of the deceased. However, the learned Tribunal dealt with
this case as ordinary civil case. The learned Tribunal grossly
erred in not conducting the inquiry in accordance with law.
6. There is no merit in the appeal but considering that the
Tribunal has not followed the due process of law, I set aside
the impugned order and restore the petition and direct the
learned Tribunal to conduct de novo inquiry into the
complaint as envisaged by under Section 168 of the Motor
Vehicle Act. The appellant shall also be given an opportunity
to cross-examine the claimants/witnesses and also to lead
evidence. The learned Tribunal may summon and examine
the necessary material witnesses to ascertain the correct
facts. In the interest of justice, the amount already
deposited by the appellant under the award dated 26 th
November, 1998 be released to the claimants to be adjusted
against the final award that may be passed by the learned
Tribunal as the liability of the appellant shall be more than
the impugned award.
7. The claimants/respondents have stopped appearing in
this matter. Considering that there is an ex-parte stay which
is continuing for the last more than 10 years and the
claimants did not get single penny in this case, I appoint Mr.
Madhurendra Kumar, as amicus curiae in this case to assist
the learned Tribunal. Copy of this order be sent to the
claimants. Copy of this order be also sent to the counsel for
the claimants/respondent Nos.1 and 2.
8. The parties are directed to appear before the learned
Tribunal on 25th May, 2009.
9. The appeal stands disposed of.
10. The LCR be returned back immediately through special
messenger.
11. Copy of this order be given Dasti to learned counsel for
the appellant as well as to the amicus curiae.
J.R. MIDHA, J
APRIL 21, 2009
mk
