Delhi High Court
New India Assurance Co. Ltd. vs Smt. Om Vati & Ors. on 2 February, 2009
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.240/1993
Date of decision: 2nd February, 2009
%
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Salil Paul, Advocate.
versus
SMT. OM VATI & ORS. ..... Respondents
Through: Mr. S.S. Panwar, Advocate for
the respondents No.1 to 6.
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. Late Mr. Kishan Gopal was travelling in tempo bearing
number DEL-6417 on 20.11.1982, when there was head-on
collision between said tempo and truck bearing number JKP-
8611. The deceased sustained severe injuries resulting into
his death.
2. The deceased was aged about 40 years at the time of
his death and was survived by respondents no.1 to 6 who filed
the claim petition before the Learned Tribunal.
3. The Learned Tribunal passed an award for Rs. 1,
44,000/- alongwith interest at the rate of 12% per annum in
favour of respondents no.1 to 6.
4. The Learned Tribunal held that the drivers of both the
vehicles were negligent and, therefore, the award was passed
jointly and severally against the appellant and respondents
no.7 to 10.
5. The appellant is the insurer of tempo bearing number
DEL-6417. The truck bearing number JKP-8611 was not
insured.
6. The contention of the learned counsel for the appellant
is that being the insurer of the tempo, the liability of the
appellant is restricted to 50% of the award amount and the
remaining 50% should be borne by the driver and the owner
of the truck and, therefore, the Learned Tribunal fell in error in
holding all the respondents jointly and severely liable.
7. Learned counsel further submits that the Learned
Tribunal was also in error in holding that both the vehicles
were insured with New India Insurance Company.
8. The learned counsel further submits that the appellant
was the insurer of the tempo only and not of the truck.
9. The learned counsel for respondents no.1 to 6 refers and
relies upon the Division Bench judgment of this court in the
case of Smt. Om Wati and Ors. Vs. Mohd. Din and Ors.
reported as 2001 IV AD (DELHI) 246 where it was held as
under :-
"12. We, therefore, hold that it was a case of
composite negligence in case of Shiv Singh
and Sat Pal and their claimants had an option
to file the claim petition either against all or
any one of the joint tort-feasors and their
failure to implead the tort-feasors of the car
was not fatal for their claim and that First
Appellate Court had wrongly forfeited their
30% share of awarded compensation amount
for this which they were entitled to recover
from the Appellate company, being insurer of
tort-feasors of truck. It was then be open to
the company to recover such amount from
the owner/insurer of the car jointly or
severally."
10. This case is squarely covered by the ratio of the above
case and claimant is entitled to claim the entire award amount
from the appellant. The appeal is, therefore, dismissed.
11. Learned counsels for the parties state that the entire
award amount has been deposited with this Court in
pursuance to the interim order dated 18.10.1994 and 50% of
the award amount has been released to respondents no.1 to 6
without security and remaining 50 % has been released
against bank guarantee.
12. Since the appellant has already deposited entire award
amount, the award stands satisfied with respect to
respondents no.1 to 6. The bank guarantee furnished by
respondents no.1 to 6 is discharged and the Registrar is
directed to return the same to respondents no.1 to 6 through
their counsel.
J.R. MIDHA, J
FEBRUARY 02, 2009
Sk/s.pal
