The New India Assurance Co Ltd vs Munesh Devi & Ors
2009 Latest Caselaw 289 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                  +            MAC.APP.No.493/2006

                                   Reserved on : 23rd January, 2009
%                               Date of decision: 28th January, 2009

       THE NEW INDIA ASSURANCE CO LTD        ..... Appellant
                     Through : Mr. P.K. Seth, Adv.

                      versus

       MUNESH DEVI & ORS                       ..... Respondents

Through : None.

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?

CM No.7825/2006

1. The appellant has filed this application for condonation

of delay of 39 days in filing of this appeal. The notice of this

application was issued to the respondents on 29 th May, 2006.

Summons were not served on the respondents. However,

respondents No.7 and 8 appeared through counsel on 1 st

March, 2007 and, therefore, fresh notices were issued to

respondents No.1 to 6. The service is still incomplete on

respondents No.1 to 6.

2. On 4th September, 2008, counsel for the appellant was

asked to verify whether an application under Section 170 of

the Motor Vehicles Act was filed before the Tribunal or not.

3. LCR shows that on 18th August, 2005, the learned Trial

Court passed an order under Section 170 of the Motor

Vehicles Act permitting the appellant to contest the case on

merits.

4. This appeal is pending for hearing on condonation of

delay application for more than 2 ½ years. Though the notice

has been issued on this application, I am of the view that

since the averments made for condonation of delay relate to

the internal delay in the office of the appellant in obtaining

the copy of the impugned order, legal opinion from the

attending lawyer, the decision by the competent authority in

the regional office and thereafter, again the legal opinion by

the competent authority, this application can be disposed of

without hearing the respondents.

5. The appellant has sufficiently explained the delay of 39

days which has occurred due to the internal delays in the

administration and time taken in decision to file the appeal. I,

therefore, hereby condone the delay of 39 days in filing of this

appeal.

6. CM stands disposed of.

MAC.APP.No.493/2006

1. This case relates to the death of Rohtash Kumar aged 44

years in a motor accident on 15th August, 2003. The deceased

was driving TATA Indica car No.DL-9CG-3507 while going from

Delhi to Shimla when it met with an accident with a truck

No.HP-51-0437 near Shimla. The learned Tribunal has

awarded total compensation of Rs.19,47,000/- to the legal

representatives of the deceased.

2. There is no dispute of there being a valid insurance.

There is also no dispute of a valid driving licence or breach of

any policy by the insured. The appellant has also not

challenged the computation of compensation. The only

ground on which the appeal has been filed is that the

deceased was rashly and negligently driving the TATA Indica

car at a very high speed and, therefore, he lost control and

went to the wrong side and hit against the truck. The driver of

the truck lodged the FIR with the police for rash and negligent

driving by the deceased. It is averred that respondents No.1

to 6 are not entitled to any compensation whatsoever from

the appellant.

3. LCR reveals that respondent No.7, driver of the truck

appeared as RW-1 and deposed with respect to the above

facts. The owner of the truck also appeared as RW-2. The

insurance company also summoned the investigating officer

of the police but his evidence was not recorded.

4. The learned Trial Court gave finding of rash and

negligent driving of the truck driver on the ground that PW-1

was not cross-examined by counsel for respondents No.1 and

2 and there was no application under Section 170 of the Act

by the appellant to contest the claim petition on merits. The

record shows that the permission under Section 170 was

granted to the insurance company on 18th August, 2005 and

the appellant's counsel in fact cross-examined PW-1.

5. The findings of the learned Trial Court with respect to

issue No.1 relating to the accident having been caused by

rash and negligent driving by the driver of the truck needs

examination.

6. I, therefore, issue notice of this appeal to the

respondents and their counsel before the learned Tribunal by

ordinary process, registered A.D., speed post as well as

courier, returnable on 19th February, 2009.

CM No.7824/2006

1. Issue notice, returnable on 19th February, 2009.

2. The appellant is directed to file an affidavit as to whether

the award amount has been disbursed to respondents No.1 to

6 and if so, the details of the disbursement to be placed on

record.

3. The impugned order shows that the accident in question

resulted in death of the Rohtash Kumar who was driving the

car and injuries to the two occupants of the car. The

appellant is directed to file an affidavit as to whether any

claim petition was filed in respect of the said injureds, if so,

the particulars of those cases should also be furnished before

the next date.

J.R. MIDHA, J JANUARY 28, 2009 aj