The New India Assurance Co Ltd vs Anita & Ors
2009 Latest Caselaw 3542 Del

28
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.148/2006

%                                 Date of decision: 3rd September, 2009


      THE NEW INDIA ASSURANCE CO LTD            ..... Appellant
                    Through : Mr. R.K. Tripathi, Adv.

                      versus

      ANITA & ORS                                 ..... Respondents
                           Through : Mr. Rajiv Khosla, Adv.
                                     for R - 1 and 2.
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 has challenged the award of the learned

Tribunal whereby compensation of Rs.2,19,000/- has been

awarded to claimants/respondent Nos.1 and 2.

2. The accident dated 9th February, 1981 resulted in the death

of Jai Bhagwan. The deceased was survived by his daughter and

son who filed the claim petition before the learned Tribunal. The

deceased was aged 27 years at the time of the accident and was

earning Rs.1,000/- per month. The learned Tribunal took the

future prospects into consideration and Rs.1,500/- was taken

towards the income of the deceased after future prospects. 1/3 rd

was deducted towards the personal expenses of the deceased

and the multiplier of 17 was applied to compute the loss of

dependency at Rs.2,04,000/-. Rs.15,000/- has been awarded

towards the non-pecuniary compensation. The total

compensation awarded is Rs.2,19,000/-.

3. The only ground urged by learned counsel for the appellant

at the time of hearing of this appeal is that the offending vehicle

in question was not validly insured with the appellant and,

therefore, the appellant is not liable to pay the compensation to

the claimants.

4. The claim petition was filed before the learned Tribunal on

7th August, 1981. However, the file of the learned Tribunal was

lost in the year 1994 and efforts were made to trace the file but

were unsuccessful. Consequently, the learned Tribunal directed

the parties to reconstruct the file in August, 2000 and the de

novo trial started in the year 2000. The owner of the offending

vehicle appeared in the witness box as R2W1 and deposed that

the offending vehicle was insured with New India Assurance

Company Limited vide policy No.4517116495. He further

deposed that the policy was submitted before the learned

Tribunal in the year 1991 and the photocopy of the same was not

retained. R2W1 further deposed that the copies of the policy and

other relevant documents were also furnished to the police at the

time of the investigation. R2W1 also led secondary evidence to

prove the policy by producing the original day book pertaining to

the year 1981 - 1982 which contained entry of Rs.2,043/- towards

the premium for insurance of the offending vehicle from 12 th

November, 1980 to 11th November, 1981. The copy of the

relevant page of the day book was exhibited as Ex.R2W1/1.

R2W1 also produced the balance sheet for the year 1980-1981 in

which the payment of premium was reflected. Copy of the

balance sheet was exhibited as Ex. R2W1/2.

5. The appellant also produced the witness R2W2 who

deposed that policy No.4517116495 pertains to the Divisional

Office, Karol Bagh of the appellant. R2W2 did not produce any

record. No evidence was led to rebut the evidence of R2W1.

6. The insurance policy has not come on record either from the

owner or by the Insurance Company at the time of retrial. The

accident is dated 9th February, 1981 in respect of which the claim

petition was filed in August, 1981. The owner claimed to have

filed the insurance policy before the learned Tribunal. However,

the same cannot be confirmed because the record of the learned

Tribunal was lost in 1994 and was reconstructed in the year

2000. The owner has successfully led the secondary evidence to

prove the payment of premium for insurance of the bus in

question by means of Ex.R2W1/1 and Ex.R2W1/2. The appellant

has not been able to rebut the secondary evidence led by the

owner of the offending vehicle. This is a case of civil nature

where the test of preponderance of probability has to be applied

and the presumption has to be drawn under Section 114 of the

Indian Evidence Act. The appellant has not led any evidence to

rebut the Ex. R2W1 and Ex.R2W1/2. The appellant has also

admitted that the policy number given by the claimant as well as

by the owner of the offending vehicle pertains to their office.

Even if the record pertaining to the said policy was lost, some

evidence could have been led by the appellant to rebut the

evidence led by the owner of the offending vehicle.

7. In the facts and circumstances of this case, the offending

vehicle is held to be validly insured with the appellant on the date

of the accident, therefore, the finding of the learned Tribunal

holding the appellant to be liable to pay the award amount to the

claimant is upheld.

8. The appeal is dismissed. No costs.

9. The appellant has deposited the entire award amount with

the learned Tribunal in terms of order dated 6th March, 2006. The

learned Tribunal is directed to release the award amount to the

claimants in terms of its award.

10. The learned counsel for the claimants submits that the

appellant has not deposited the entire award amount and there is

short deposit. The claimants are at liberty to approach the

learned Tribunal for claiming the short deposit, if any.

11. All the pending applications stand dismissed.

12. The LCR and the execution file of this case be sent back to

the learned Tribunal.

13. Copy of this order be given 'Dasti' to learned counsel for

both the parties under the signature of Court Master.

J.R. MIDHA, J SEPTEMBER 03, 2009 mk