Delhi High Court
Oriental Insurance Co.Ltd. vs Urmila Devi & Ors. on 22 April, 2009
Author: J.R. Midha
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22nd April, 2009
%
+ MAC.APP. No.306/2006, CM Nos.5268/2006,
13392/2006, 14104/2006, 6195/2007 and
5564/2009
ORIENTAL INSURANCE CO.LTD. ..... Appellant
Through : Mr. L.K. Tyagi, Adv.
versus
URMILA DEVI & ORS. ..... Respondents
Through : Mr. S. D. Wadhwa, Adv.
+ MAC.APP. 309/2006, CM Nos.5279/2006,
13396/2006, 14105/2006, 5642/2009 and Cross
objections No..................
ORIENTAL INSURANCE CO.LTD. ..... Appellant
Through : Mr. L.K. Tyagi, Adv.
versus
URMILA DEVI & ORS. ..... Respondents
Through : Mr. S. D. Wadhwa, Adv.
+ MAC.APP. 382-86/2006, CM Nos.13959/2009 and
5563/2009
URMILA DEVI & ORS. ..... Appellants
Through : Mr. S. D. Wadhwa, Adv.
versus
ARUN KUMAR YADAV & ORS. ..... Respondents
Through : Mr. L.K. Tyagi, Adv.
for R - 3.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may No
be allowed to see the Judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
MAC .APP.Nos.306/2006, 309/2006 and 382-86/2006 Page 1 of 5
JUDGMENT (Oral)
1. The appellant in MAC.APP.Nos.306/2006 and 309/2006
has challenged the common award of the learned Tribunal
whereby compensation of Rs.10,25,000/- has been awarded
in respect of the death of Ram Gopal Shah and the award of
Rs.1,73,000/- in respect of the injuries to Urmila Devi.
2. The accident dated 1st August, 2001 between Matiz car
bearing No.UP-32AA-6605 and commander jeep bearing
No.UP-60B-6442 resulted in the death of Ram Gopal Shah
and injuries to his widow, Urmila Devi who was travelling in
the car.
3. Ram Gupta Shah was survived by his widow and three
sons and a married daughter who filed the claim petition
before the learned Tribunal. Urmila Devi filed the second
petition in respect of the injuries suffered by her. Both these
petitions were filed against the driver, insurer and owner of
the jeep. The appellant raised the defence in both petitions
that the accident occurred due to the rash and negligent
driving of the car and, therefore, the appellant/insurance
company is not liable to pay any compensation.
4. The learned Tribunal held the driver of the jeep to be
rash and negligent and passed the award against the
appellant who is the insurer of the jeep in question.
5. The appellant has filed this appeal on various grounds
inter-alia that the driver of the car was negligent. The
appellant has referred to and relied upon the statement of
the driver of the jeep who appeared in the witness box and
deposed that the driver of the car was negligent. No FIR was
registered in this case. Learned counsel for the
claimants/respondents refer to and rely upon the statement
of the driver of the car who also appeared in the witness box
and deposed that the driver of the jeep was negligent.
However, the perusal of the lower Court record reveals that
driver of the car was not cross-examined and, therefore, his
statement is not evidence in the eyes of law.
6. The claimants/respondents in both the cases are
claiming enhancement of the compensation. MAC.APP.
No.382-86/2006 has been filed claiming enhancement in
respect of the death of Ram Gopal Shah. With respect to the
injury case, cross-objections have been filed in
MAC.APP.No.309/2006.
7. The claimants/respondents have filed CM No.5564/2009
for remanding back the case to the learned Trial Court for
cross-examination of the driver of the car. The
claimants/respondents have filed another application bearing
CM No.5563/2009 for impleading the driver, owner and
insurance company of the car in question.
8. Learned counsel for the appellant/insurance company
does not oppose both these applications which are allowed.
9. With the consent of the parties, both impugned awards
are set aside and the petitions are remanded back to the
learned Tribunal for de novo trial after impleading the driver,
owner and the insurance company of the car in question.
The appellant shall be given opportunity to cross-examine
the driver of the car who appeared before the learned
Tribunal as a witness but could not be cross-examined. The
parties shall also have the liberty of leading further evidence
in support of their case. After recording of the evidence of
both the parties as well as newly added parties, the learned
Tribunal shall decide the claim petitions afresh. The learned
Tribunal shall also consider and adjudicate the grounds
raised by the appellant for denying the liability as well as by
the claimants/respondents for enhancement of the
compensation.
10. The appellant has deposited the entire award amount
with the Registrar General of this Court in pursuance to the
interim order and 40% of the award amount has been
released to the claimants/respondents in
MAC.APP.No.306/2006 and Rs.1 lakh has been released to
the claimants/respondents in MAC.APP.No.309/2006. The
remaining amount is lying deposited with the Registrar
General of this Court. It is agreed between the parties that
claimants/respondents shall retain the amount already
released to them subject to the final adjustment against the
final order passed by the learned Tribunal and the remaining
amount along with interest thereon lying deposited with the
Registrar General of this Court be returned back to the
appellant in MAC.APP.Nos.306/2006 and 309/2006.
11. Ordered accordingly. The claimants/respondents shall
retain the amount received by them in terms of the interim
order passed by this Court. The Registrar General is directed
to refund the remaining amount lying deposited in
MAC.APP.Nos.306/2006 and 309/2006 along with interest
accrued and the statutory amount of Rs.25,000/- back to the
appellant in both the cases.
12. The parties are directed to appear before the learned
Tribunal on 13th May, 2009.
13. The learned Tribunal shall take the amended memo of
parties on record and issue notice to the newly impleaded
parties in terms of the above order.
14. Noting that the case relates to the accident dated 1 st
August, 2001, the learned Tribunal is directed to dispose of
these petitions within a period of six months.
15. All pending applications in these cases stand disposed
of. All interim orders stand vacated.
16. Copy of this order be given 'Dasti' to learned counsel
for both the parties under signatures of Court Master.
J.R. MIDHA, J
APRIL 22, 2009
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