Narender Kumar vs National Insurance Co. Ltd. & Ors
2010 Latest Caselaw 2814 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.188/2009

                                   Date of Decision:28th May, 2010
%

NARENDER KUMAR                            ..... Appellant
                           Through : Ms. Suman Bagga, Adv.

                      versus

NATIONAL INSURANCE CO. LTD. & ORS...... Respondents
                  Through ; Ms. Shantha Devi Raman,
                            Adv. for R-1.
                            Mr. Anshuman Bal, Adv. for
                            R-2.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA


1.      Whether Reporters of Local papers may                YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?               YES

3.      Whether the judgment should be                       YES
        reported in the Digest?


                          JUDGMENT (Oral)

CM No.4929/2009 (Delay)

1. For the reasons stated in the application and also

noting that the appellant has very good case on merits, the

delay in filing the appeal is condoned.

2. The application stands disposed of.

MAC.APP.No.188/2009

1. The appellant has challenged the award of the learned

Tribunal whereby the compensation of Rs.2,24,676/- has

been awarded to claimant/respondent No.2.

2. The accident dated 13th April, 2006 resulted in grievous

injuries to respondent No.2. Respondent No.2 was travelling

in Canter bearing No.HR-69-6478 which met with an

accident. The Canter overturned due to the rash and

negligent driving of its driver. Respondent No.2 suffered

grievous injuries due to the accident. Respondent No.2 was

hospitalized twice. Respondent No.2 remained in hospital

initially for eighteen days and on the second occasion for six

days. Respondent No.2 was operated upon and a rod was

inserted in his left leg. The permanent disability of

respondent No.2 has been assessed to be 25% in respect of

the left leg.

3. The appellant is the owner, respondent No.3 is the

driver and respondent No.1 is the insurer of the offending

vehicle.

4. The Claims Tribunal passed an award against the

appellant and respondent No.3. However, respondent No.1

has been exonerated on the ground that the offending

vehicle was a good vehicle and the goods did not belong to

respondent No.2. The Claims Tribunal referred to and relied

upon the judgment of the Hon'ble Supreme Court in the case

of National Insurance Co. Ltd. vs. Baljit Kaur, (2004) 2

SCC in which it was held that the insurer was not liable to

pay the compensation to the gratuitous passenger in the

goods vehicle.

5. The learned counsel for the appellant has urged at the

time of hearing of this appeal that respondent No.2 was not a

gratuitous passenger and he was travelling with the goods in

the vehicle. The learned counsel for the appellant submits

that respondent No.2 was on duty with the goods on the

offending vehicle which was stated in para 23 (1) of the

petition. The learned counsel for the appellant refers to and

relies upon the statement made by respondent No.2 in the

witness box as PW-1. Respondent No.2 stated in his

examination-in-chief as under:-

"That on 13.04.06 at about 3.00 P.M. I was going in Canter no.HR-69-6478 alongwith goods. The canter was being driven by its driver at a very high speed driven most rashly and negligently when the canter reached Bhalaswa chowk outer ring road, Jahangirpuri, Delhi. The driver lost control as a result of which the vehicle hit against the another vehicle and thereafter it overturned as a result I received fracture left tibial plateau."

6. In cross-examination, PW-1 deposed as under:-

"I have with me my driving licence to prove my identity. I am a labourer. I had a duty in the vehicle no.HR-69-6478. The said vehicle in the company Kiran Tyagi Transport. I do not work in Tyagi Transport. It was not my goods which were being transported by the said vehicle but it was owned by the government. The canter no. HR-69-6478 is mend for carrying goods. It is wrong to suggest that I was simply travelling in the canter. Vol. I was on duty with the goods."

7. The learned counsel for the respondent No.1 has

vehemently argued it has not been sufficiently proved that the

respondent No.2 was not a gratuitous passenger. The learned

counsel for respondent No.2 submits that respondent No.1 has

not even produced/proved the copy of the insurance policy and

the terms and conditions of the policy and in that view of the

matter, the case should be decided on the basis of the

admitted insurance on the insurance policy of respondent No.1.

8. In the facts and circumstances of this case, this Court is of

the view that the appellant was travelling with the goods on the

offending vehicle and was not a gratuitous passenger and was,

therefore, covered under the policy.

9. The appeal is allowed and the impugned award is

modified to the extent that respondent No.2 shall be entitled to

the award amount from respondent No.1.

10. The appellant has deposited a sum of Rs.50,000/- with

UCO Bank in terms of the order dated 16th November, 2009 and

the same amount has been released to respondent No.2 in

terms of the order dated 11th December, 2009. In that view of

the matter, respondent No.1 shall make the payment of

Rs.50,000/- out of the award amount to the appellant and after

adjusting the said amount of Rs.50,000/-, respondent No.1

shall deposit the balance award amount along with interest

with UCO Bank A/c Mohd. Noor Alam, Delhi High Court Branch,

within 30 days through Mr.M.M. Tandon, Member-Retail Team,

UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.

09310356400).

11. Upon the said amount being deposited, the UCO Bank is

directed to release 10% of the said amount to respondent

No.2 by transferring the same to his UCO Bank account. The

remaining amount be kept in fixed deposits in the name of

respondent No.2 in the following manner:-

(i) Fixed deposit in respect of 10% of the amount for

a period of 6 months.

(ii) Fixed deposit in respect of 10% of the amount for

a period of one year.

(iii) Fixed deposit in respect of 10% of the amount for

a period of one and a half years.

(iv) Fixed deposit in respect of 10% of the amount for

a period of two years.

(v) Fixed deposit in respect of 10% of the amount for

a period of two and a half years.

(vi) Fixed deposit in respect of 10% of the amount for

a period of three years.

(vii) Fixed deposit in respect of 10% of the amount for

a period of three and a half years.

(viii) Fixed deposit in respect of 10% of the amount for

a period of four years.

(ix) Fixed deposit in respect of 10% of the amount for

a period of four and a half years.

12. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of respondent No.2.

13. Withdrawal from the aforesaid account shall be

permitted to respondent No.2 after due verification and the

Bank shall issue photo Identity Card to respondent No.2 to

facilitate identity.

14. No cheque book be issued to respondent No.2 without

the permission of this Court.

15. The Bank shall issue Fixed Deposit Pass Book instead of

the FDRs to the appellants and the maturity amount of the

FDRs be automatically credited to the Saving Bank Account

of the beneficiary at the end of the FDR.

16. No loan, advance or withdrawal shall be allowed on the

said fixed deposit receipts without the permission of this

Court.

17. Half yearly statement of account be filed by the Bank in

this Court.

18. On the request of respondent No.2, the Bank shall

transfer the Savings Account to any other branch according

to the convenience of respondent No.2.

19. Respondent No.2 shall furnish all the relevant

documents for opening of the Saving Bank Account and Fixed

Deposit Account to Mr. M.M. Tandon, Member-Retail Team,

UCO Bank Zonal, Parliament Street, New Delhi.

20. Copy of the order be given dasti to counsel for both the

parties under the signatures of the Court Master.

21. Copy of this order be also sent to Mr. M.M. Tandon,

Member-Retail Team, UCO Bank Zonal, Parliament Street,

New Delhi (Mobile No. 09310356400) through the UCO Bank,

High Court Branch under the signature of Court Master.

J.R. MIDHA, J MAY 28, 2010 HL