Sandeep vs National Insurance Co. Ltd. & Anr.
2009 Latest Caselaw 102 Del

R-7A
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        MAC APP.No.51/2008

                         Date of decision:15th January, 2009
%

       SANDEEP                                   ..... Appellant
                     Through : Mr. S.N. Parashar, Adv.

                     versus

       NATIONAL INSURANCE CO. LTD. & ANR. ..... Respondents
                Through : Mr. Mohan Babu Aggarwal, 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?

J.R. Midha, J. (Oral)

1. The appellant was travelling in a car bearing No.UP-81-C-

6666 near Meerut on 3rd January, 2000 when the car met with

an accident with truck bearing No.HR-38-A-6517 which

suddenly drove back without giving any indication, as a result

of which, the appellant sustained severe head injuries,

fracture frontal bone, fracture orbit, fracture facial, fracture

maxilla besides other injuries. Three major surgeries were

conducted on the face of the appellant.

2. The appellant filed the petition seeking compensation

under the Motor Vehicles Act against the owner and insurer of

the offending truck.

3. The learned Tribunal computed the compensation of

Rs.3,36,473/- payable to the appellant. The learned Tribunal

held that the drivers of the car as well as the truck were

negligent. The learned Tribunal passed an award of the 50%

of Rs.3,36,473/- against the insurance company of the truck.

However, since the driver, owner and insurance company of

the car were not impleaded before the Tribunal, no award was

passed against them with respect to the remaining 50% of the

compensation.

4. The appellant had challenged the impugned award on

the short ground that in the case of composite negligence, the

claimant has the option to file the claim petition either against

all or any one of the joint tort-feasors and the failure to

implead all the tort-feasors is not fatal to the claim. It is

further contended that the insurance company of one tort-

feasor is liable to satisfy the entire award and it is open to the

insurance company to effect the recovery from the

owner/insurer of the other vehicle. The counsel for the

respondent submits that the view taken by the learned MACT

is correct. He further submits that particulars of the driver,

owner and insurer of the car are not available.

5. The learned counsel for the appellant refers to and relies

upon the Division Bench judgment of this court in the case of

Smt. Om Wati & Ors. vs. Mohd. Din & 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 Appellant company, being insurer of tort-feasors of truck. It would then be open to the company to recover such amount from the owner/insurer of the car jointly or severally."

6. The ratio laid down in the aforesaid judgment squarely

covers the present case. I, therefore, allow this appeal and

modify the award to the extent that respondents No.1 and 2

are jointly and severally liable to pay a sum of Rs.3,36,473/-

instead of Rs.1,68,237/- along with the interest @7.5% from

the date of the petition till award and @9% per annum

thereafter. It is open to the respondent to recover 50% of the

award amount from the owner/insurer of the car.

6. No costs.

J.R. MIDHA, J

JANUARY 15, 2009 aj